- Does this new provision apply to all H-4 spouses?
- Which H-4 spouses will qualify for this new rule?
- My H-1B spouse has an approved PERM application under EB-2 and the priority date for this category is current. Should I apply for an EAD under this new rule?
- My H-1B spouse has an approved PERM application but the employer does not want to file the I-140 Immigrant Visa Petition until just before the 6 month expiration date. Can I apply for an EAD under this new rule?
- Can an H-4 dependent child apply for an EAD?
- I’m not sure if I want to work. Should I apply for an EAD anyway?
- When can I apply for an EAD under this new rule?
- How do I apply for an EAD under this new rule?
- How long will the EAD be valid for?
- How long will it take for USCIS to issue the EAD?
Does this new provision apply to all H-4 spouses?
No, this new provision does not apply to all H-4 spouses. It only applies to H-4 spouses who meet certain conditions.
Which H-4 spouses will qualify for this new rule?
To qualify, the H-4 spouse must be married to an H-1B who:
- Is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker; or
- Is the beneficiary of an approved H-1B extension petition beyond the H-1B six year limit under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (“AC21″). AC 21 permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status, once a PERM application or I-140 petition has been filed and pending for over 365 days.
- A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
- The labor certification was filed with DOL or the I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4); and
- The extension and I-129 petition are otherwise approvable.
- Deny the application for labor certification;
- If the labor certification is approved, to revoke the approved labor certification;
- Deny the EB immigrant petition; or
- Grant or deny the alien’s application for an immigrant visa or for adjustment of status.
USCIS estimates that this new rule will only impact approximately 179,600 H-4 spouses in the first year, and approximately 55,000 H-4 spouses annually.
The following are some examples of H-4 spouses who will likely benefit from the new rule:
- An H-4 spouse married to an H-1B with an approved I-140 Immigrant Visa Petition filed under the EB-2 category (based on a PERM labor certification or National Interest Waiver or Schedule A, Group I (Physical Therapists or Nurses) or Schedule A, Group II Alien of Exceptional Ability) but is subject to backlogs or retrogression (and therefore unable to file an I-485 adjustment of status application).
- An H-4 spouse married to an H-1B with an approved I-140 Immigrant Visa Petition filed under the EB-3 category (based on a PERM labor certification or Schedule A, Group I (Physical Therapists or Nurses) or Schedule A, Group II Alien of Exceptional Ability) but is subject to backlogs or retrogression (and therefore unable to file an I-485 adjustment of status application).
- An H-4 spouse who is married to an H-1B who has an H-1B approved beyond the six-year limit (i.e. an H-1B in 7th year or 8th year or 9th year or more, of H-1B status) based on a PERM application or I-140 petition that has been filed and pending for over 365 days.
My H-1B spouse has an approved PERM application under EB-2 and the priority date for this category is current. Should I apply for an EAD under this new rule?
Since H-1Bs (and H-4 dependents) with current priority dates are eligible to file a concurrent I-485 Adjustment of Status application with the I-140 Immigrant Visa petition, it is unnecessary to file for an EAD under this new rule. The H-1B and any H-4 dependents will all receive a “combo card” (combined work permit and travel document) within 2-3 months of filing the I-485 adjustment application, so applying for a separate EAD under this rule is unnecessary.
My H-1B spouse has an approved PERM application but the employer does not want to file the I-140 Immigrant Visa Petition until just before the 6 month expiration date. Can I apply for an EAD under this new rule?
Some employers may not wish to file the I-140 Immigrant Visa petition immediately after the PERM approval. This could stem from ability-to-pay issues or performance issues or uncertainty related to corporate restructuring. If the H-1B has an approved H-1B beyond the six-year limit (i.e. H-1B in 7th year or 8th year or 9th year or more, of H-1B status) based on a PERM application that has been filed and pending for over 365 days, an H-4 spouse could apply for an EAD under the new rule.
Can an H-4 dependent child apply for an EAD?
No, the rule only covers eligible H-4 spouses. It does not allow H-4 teenage children to apply for an EAD.
I’m not sure if I want to work. Should I apply for an EAD anyway?
A benefit of having an EAD is that the H-4 spouse can apply for a Social Security number. Also, having the EAD in hand allows an H-4 spouse to start working at any time without delay.
When can I apply for an EAD under this new rule?
USCIS will begin accepting EAD applications under this new rule on May 26, 2015. Applications filed before this date will be denied or rejected.
How do I apply for an EAD under this new rule?
Applicants should include the following with the completed Form I-765:
- Proof of eligibility – e.g. copy of I-797 Approval Notice to show I-140 approval, or H-1B I-797 Approval Notice (for H-1B extension) or proof that a PERM labor certification or I-140 petition has been pending for 365 days.
- Marriage certificate.
- Proof that the H-1B is maintaining status including status documents (I-94 electronic record, H-1B visa, as well an employment verification letter or recent pay slips).
- 2 passport-style color photographs.
- Filing fee check in the amount of $410.
How long will the EAD be valid for?
To be consistent with the validity period for employment authorization extended to E–1/E–2 and L–1 spouses, USCIS is considering a validity period of up to two years for eligible H–4 dependents, but not exceeding the H-4 dependent’s period of stay. USCIS has indicated that H-4 dependents can concurrently file the I-765 application together with the I-129 (H-1B petition) and I-539 H-4 application.The EAD expiration date will generally match the H-4 nonimmigrant status expiration date. USCIS may grant employment authorization for the maximum time allowed even if the AC21 §§ 106(a) and (b) portion of the H-1B spouse’s extension is only for part of the full validity period.
How long will it take for USCIS to issue the EAD?
USCIS will adjudicate the application within 90 days of receipt. However, based on current processing times, USCIS typically issues EADs in other categories within 2-3 months.
