Certain H-4 dependent spouses of H-1B visa holders may now apply for an Employment Authorization Document. The final rule giving H-4 employment authorization was part of the executive actions on immigration that President Obama announced in November 2014. It became effective on May 26, 2015. The new rule ends years of waiting by thousands of H-4 visa holders that have been unable to work in the United States.
An H-4 visa is issued to the immediate family members (spouse and children under 21 years of age) of H visa holders (H-1A, H-1B, H-2A, H-2B, or H-3), so that they can legally stay in the U.S. However these dependent spouses have not had the privilege of H-4 employment authorization in the United States.
Many of these H-4 dependent spouses are highly educated people who left successful careers in their home countries to follow a spouse to the United States. In the United States, their skills have been wasted. They could have been contributing to the economy, paying taxes and generating new jobs. Instead, U.S. immigration policy has forced them to stay at home.
H-4 Employment Authorization Eligibility
Effective May 26, 2015, USCIS will accept applications for employment authorization from certain H-4 dependent spouses of certain H-1B non-immigrants who have already started the process of seeking employment-based lawful permanent resident status. Approved applicants will receive an Employment Authorization Document (EAD). You are eligible for H-4 employment authorization if you are the H-4 dependent spouse of an H-1B non-immigrant if your H-1B non-immigrant spouse:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted H-1B status under sections 106(a) and (b) of the AC21. The AC21 permits H-1B non-immigrants seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.
How to Apply for H-4 Employment Authorization
Eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 USCIS fee to obtain H-4 employment authorization.
To apply for H-4 employment authorization, applicants should file the following items:
- Form I-765, Application for Employment Authorization
Applicants can download a free copy of the application from USCIS.gov. CitizenPath helps applicants prepare Form I-765 in about 15 minutes. Try it for free.
- USCIS Filing Fee
There is a USCIS filing fee of $380, regardless if you prepare by yourself or use CitizenPath.
Submit two identical 2” x 2” passport-style color photographs of yourself.
- Proof of Applicant’s H-4 Status
Include a copy of your most recent Form I-797, Notice of Action, for Form I-539, Application to Extend/Change Non-immigrant Status; or provide a copy of Form I-94, Arrival/Departure Record, showing your admission or extension of stay as an H-4 non-immigrant.
- Government-Issued ID
Applicants will need to include a copy of a government-issued identification with photo. Examples of acceptable documents include: a copy of the biometric page of your passport; a birth certificate with photo ID; a visa issued by a foreign consulate; or a national identity document with photo.
- Proof of Spousal Relationship to H-1B Visa Holder
Most people will include a copy of their marriage certificate to prove that the H-1B non-immigrant is a spouse.
- Basis for Eligibility
Submit evidence that the H-1B non-immigrant is the principal beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140) or that the H-1B non-immigrant has received an extension of stay under AC21. CitizenPath’s instructions provide detailed instructions to help you through this requirement.
This is a summary of the supporting documentation required. USCIS has published a detailed set of Form I-765 instructions. If you use CitizenPath to prepare your Form I-765, you will automatically receive simplified filing instructions that have been customized for H-4 applicants.
Currently, a paper Form I-765 must be filed. USCIS may accept electronic filings for H-4 employment authorization in the future.
H-4 Employment Authorization Term of Validity
Although you may file Form I-765 for H-4 employment authorization beginning on May 26, 2015, it will take approximately 90 days for USCIS to make a decision on your application. You will not be eligible to work until USCIS approves your Form I-765 application.
You will only be authorized to work in the U.S. through the expiration date on your EAD. USCIS will issue H-4 employment authorization for a period of up to three years. It is very likely that the expiration date on your EAD will be the same as the expiration date on your most recent Form I-94 indicating your H-4 non-immigrant status. The EAD’s validity generally will not exceed the H-1B worker’s approved period of stay. For example:
- An H-1B worker seeking an extension of status on the basis that 365 days or more have passed since filing of a labor certification or Form I-140 is eligible for an extension in just one-year increments. Thus, the H-4 spouse’s period of employment authorization will be limited.
- An H-1B worker who is the beneficiary of an approved Form I-140 (but is still waiting for an immigrant visa number) may be granted an extension of H-1B status for a period of up to three years. The H-4 employment authorization may be granted for the same period.
If you continue to meet the eligibility guidelines for H-4 employment authorization after the expiration date, you may apply for a renewal EAD by submitting another Form I-765. File the renewal application no more than 120 days before your original EAD expires.
Where You Can Work with H-4 Employment Authorization
With H-4 employment authorization under 8 CFR 274a.12(c)(26), your employment authorization is unrestricted. In other words, your employment authorization is not limited to a specific employer. You may also become self-employed or start a business that employs other individuals. Note: some government jobs and jobs with companies working on certain government contracts are limited to U.S. citizens and lawful permanent residents.
Many Not Included in the H-4 Final Rule
The final rule that authorized employment authorization for certain H-4 dependent spouses was an important step, but fails to help all H-4 dependent spouses. The new rule only covers a limited number.
Many H-4 visa holders, who accompanied their H-1B spouses to the United States, are extremely skilled and talented individuals themselves. These educated H-4 spouses could contribute to the U.S. economy. Unfortunately, their status forces them to sit at home. Many aren’t even eligible for drivers licenses.
USCIS states that issuing work authorization to certain H-4 spouses will:
- reduce the economic burdens and personal stresses that H–1B non-immigrants and their families may experience during the transition from non-immigrant to LPR status while, at the same time, facilitating their integration into American society.
- support the goals of attracting and retaining highly skilled foreign workers.
- ameliorate certain disincentives for talented H–1B non-immigrants to
- permanently remain in the United States and continue contributing to the U.S. economy as lawful permanent residents. This is an important goal considering the contributions such individuals make to entrepreneurship and research and development, which are highly correlated with overall economic growth and job creation; and
- bring U.S. immigration policies concerning this class of highly skilled
- workers more in line with those of other countries that are also competing to attract and retain similar highly skilled workers.
Granting employment authorization to all H-4 dependent spouses could help fulfill these goals even more effectively.
CitizenPath is the online service that makes immigration forms simple. The website provides simple, step-by-step guidance through USCIS applications and petitions. Our low-cost service helps to simplify the process by explaining each question and providing alerts if your answer to a question could be a problem. Most people do not need a lawyer to prepare USCIS forms, but many need a little assistance. That’s where CitizenPath can help. CitizenPath provides support for H-4 Employment Authorization (Form I-765), Green Card Renewal (Form I-90), the Citizenship Application (Form N-400), and several other USCIS forms.