The United States Citizenship and Immigration Services (USCIS) is now accepting work permit applications of certain H-4 spouses of H-1B non-immigrants who are in the process of obtaining green cards through employment.
The benefit is only available to the H-4 spouse of an H-1B visa holder who is either the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker or has been granted an H-1B extension under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended.
Under AC21, H-1B workers may file for an extension of their H-1B status beyond the 6 years allowable period on H-1B status, if they are unable to adjust status before the end of the six-year period mainly because of delays in the adjudication of employment-based green card sponsorships or the unavailability of a visa number.
The USCIS issued an FAQ on the new H-4 rule. It clarified, among others that H-4 dependent spouses who are eligible for the benefit may apply for work permits as long as they are on a valid H-4 status. The validity of their employment authorization document (EAD) will be for the same period as their H-1B family member. The applicants may apply for renewal of their EAD as long as they remain eligible under the rule.
If the H-1B visa holder’s I-140 petition is revoked or he is no longer eligible for H-1B extension under AC21, the USCIS has the discretion to revoke the work permit issued. Also, both the H-1B visa holder and the H-4 dependent spouse must maintain their nonimmigrant status in order for the H-4 spouse to qualify for the benefit.
The H-4 spouse granted work authorization under this rule may work for any employer. The work permit is unrestricted. The H-4 spouse may even start a business and hire individuals as employees of the business.
The application is made on Form I-765, Application for Employment Authorization. If the H-1B visa holder is filing Form I-129 petition to extend his/her stay on H-1B status along with the H-4 dependent’s spouse H-4 extension of stay application, the application for work permit may be filed together with these applications.
If a new H-1B petition is being filed along with a new H-4 change of status application, the application for work permit may also be filed concurrently. However, before the USCIS can adjudicate the I-765 application, it must first determine if both are eligible for H-1B and H-4 status respectively.
Current rules require the USCIS to adjudicate a pending I-765 application within 90 days from receipt. If the application is not adjudicated by the 90th day, regulations require the USCIS to issue an interim Employment Authorization Document. In this case, however, the USCIS will not begin counting the 90 days until they make a decision on the H-1B petition and the H-4 application.
The applicant must submit the following to show eligibility for the benefit: evidence of H-4 non-immigrant status, evidence of qualifying spousal relationship with the H-1B visa holder such as marriage certificate, and evidence of the H-1B family member’s non-immigrant status.
If the H-1B visa holder has an approved I-140 petition, the applicant must submit evidence that the I-140 petition has been approved such as the Form I-797 Approval Notice.
If not, the applicant must show evidence that the H-1B spouse is a beneficiary of a permanent labor certification application or employment-based immigrant visa petition which was filed on his/her behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. The labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.
There is no premium processing service available for I-765 applications under this new rule.