New H-4 EAD Rule for Dependents of H-1B

H-4 EADU.S. Citizenship & Immigration Services (USCIS) announced last week that they would begin accepting applications for employment authorization from certain H-4 visa holders on May 26, 2015.

The decision comes after three years of agency consideration and vetting, but the announcement ends many more years of waiting by thousands of H-4 visa holders that have been unable to work in the United States.

The rule change is good news for many families, but it is particularly beneficial to many Indian and Chinese professions. Most H-1B visas are held by nationals from the two countries, and most will have to renew their H-1B status for 10-20 years before an immigrant visa (green card) becomes available.

The H-4 EAD Dilemma

America is the land of dreams, but for many H-4 visa holders those dreams have been dying.

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 US. However H-4 visa holders have not had the privilege of employment authorization in the United States. They can’t even start their own business.

Many of these H-4 visa holders are highly educated individuals who left successful careers in their home countries to follow a spouse to the United States. In the United States, their skills are untapped and their knowledge underutilized. They could be contributing to the economy, paying taxes and generating new jobs. Instead, they’ve been shackled by U.S. immigration policy.

According to the U.S. Department of State, there have been over 375,000 H-4 visa issued in the last five years. Hundreds of thousands of non-immigrant visa holders are held captive by these rules. They happily accompanied a spouse to the United States but are trapped in isolation. Rashi Bhatnaga, an H-4 visa holder, has been actively involved in the effort to grant H-4 visa holders the right to work. She started a Facebook page called H4 Visa, A Curse, as a community for over 11,000 H-4 visa holders.

H-4 EAD Resolution

USCIS Director León Rodríguez formally announced last week that DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Although a draft H-4 EAD rule was published in May 2014, finalizing it is part of the executive actions on immigration that President Obama announced in November 2014. Extending eligibility for the H-4 EAD to certain H-4 dependent spouses of H-1B non-immigrants is one of the initiatives to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

USCIS anticipates as many as 179,600 people will be eligible for the H-4 EAD under the new rule. An estimated 55,000 are expected to apply annually in future years.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Bhatnaga adds, “The H-4 EAD Rule has given a lot of encouragement to many spouses on an H-4 visa. It will definitely change many lives for good. We are thankful to the USCIS, President Barack Obama for this historical step towards the betterment of the families of high skilled workers.”

Not all H-4 visa holders will be eligible for the EAD cards. At this time, USCIS will only issue the cards to H-4 visa holders who are the beneficiaries of an approved Immigration Petition for Immigrant Worker (Form 1-140), or those who are the spouses of H-1B visa holders who have got an extension of their authorized period of admission in the US, beyond the permitted six years.

The rule will benefit H-4 spouses only in the following cases:

  • the principal H-1B is the beneficiary of an approved I-140 immigrant visa petition or
  • the principal H-1B is eligible for a post-sixth-year extension of H-1B status pursuant to the American Competitiveness in the 21st Century Act (AC-21).

Only spouses of H-1B workers will be eligible for the H-4 EAD at this time. However, spouses in other types of non-immigrant status may apply to change their status to H-4 using Form I-539 and simultaneously applying the employment authorization (Form I-765).

How to Apply for the H-4 EAD

Eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization.

When filing the Form I-765 for an H-4 EAD, the application must be accompanied by the following documents:

  • An I-94 showing that the applicant is maintaining H-4 status;
  • A copy of his/her marriage certificate;
  • The spouse’s I-94 showing that the spouse is maintaining H-1B status; and
  • The Notice of Approval of the spouse’s I-140 or evidence that the spouse has received a post-6th year H-1B extension under AC-21.

Do not use the existing Form I-765, Application for Employment Authorization, to apply for the H-4 EAD. A new version of Form I-765 which accommodates the (c)(26) eligibility category for H-4 visa holders is expected to be released by the May 26, 2015, implementation date. Filing a non-compliant version of the application will result in a rejected filing.

Once USCIS approves Form I-765 and the dependent spouse receives an H-4 EAD, he or she may begin working in the United States.

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