FAQs: Employment Authorization for Certain H-4 Dependent Spouses
Published by the USCIS.gov5/20/2015
On February 26, 2015, USCIS hosted a teleconference about new
regulatory changes, effective May 26, 2015, that extend employment
authorization to certain H-4 dependent spouses of certain H-1B nonimmigrants
who have already started the process of seeking employment-based lawful
permanent resident status. Those eligible include H-4 dependent spouses
of principal H-1B nonimmigrants who:
Please note that you may not apply for employment authorization under these regulations until May 26, 2015. If granted employment authorization under these regulatory changes, H-4 dependent spouses will receive a Form I-766, Employment Authorization Document (EAD), as proof of that authorization.
We are posting these Frequently Asked Questions in response to this stakeholder teleconference. Please use the hyperlinks below to navigate to the topics of your choice:
Determining If You May Apply for Employment Authorization
Applying for Employment Authorization
How We Will Adjudicate Your Employment Authorization Application
While Waiting For USCIS to Adjudicate Your Employment Authorization Application
Once You Receive Employment Authorization
Applying for Employment Authorization
Please note that under this scenario, we cannot adjudicate your Form I-765 until we make a determination about both your H-1B spouse’s eligibility for H-1B status under sections 106(a) and (b) of AC21 and your eligibility for H-4 nonimmigrant status.
In either of the above scenarios, USCIS will not begin the 90-day interim EAD clock until we make a decision on your spouse’s H-1B status and your H-4 status.
Such attestation can include the receipt number of the most current Form I-129 extension of stay filed on your H-1B spouse’s behalf or the receipt number of the approved Form I-140 petition filed on your H-1B spouse’s behalf, and the petitioner’s/beneficiary’s names in the underlying Form I-129 or I-140. If you cannot obtain such secondary evidence, explain your inability to do so and submit two or more sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances.
How We Will Adjudicate Your Application for Employment Authorization (Form I-765)
While Waiting for USCIS to Adjudicate Your Application for Employment Authorization (Form I-765)
Finally, please note that if you file Form I-765 concurrently with Form I-539 requesting a change to H-4 status from a different nonimmigrant classification, we will deny your Form I-539 as abandoned if you travel abroad while your Form I-539 is pending. In this case, we would also deny your Form I-765.
Once You Receive Employment Authorization
- Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Have been granted H-1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). AC21 permits H-1B workers seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.
Please note that you may not apply for employment authorization under these regulations until May 26, 2015. If granted employment authorization under these regulatory changes, H-4 dependent spouses will receive a Form I-766, Employment Authorization Document (EAD), as proof of that authorization.
We are posting these Frequently Asked Questions in response to this stakeholder teleconference. Please use the hyperlinks below to navigate to the topics of your choice:
Determining If You May Apply for Employment Authorization
Applying for Employment Authorization
How We Will Adjudicate Your Employment Authorization Application
While Waiting For USCIS to Adjudicate Your Employment Authorization Application
Once You Receive Employment Authorization
Frequently Asked Questions
Determining If You May Apply for Employment Authorization - As an H-4 nonimmigrant, would my employment authorization be limited to just my H-1B spouse’s time under AC21? For example, if my H-1B spouse’s petition is approved for the remaining time left in the 6-year period of admission plus the one year under AC21 §§ 106(a) and (b), and my H-4 status is granted the same period of time, how long will my employment authorization be valid for?
- Is this a one-time opportunity?
- Do I need to be in the United States to apply for employment authorization based on my H-4 status?
- Am I eligible for employment authorization if USCIS revoked my H-1B spouse’s approved Form I-140 petition?
- My H-1B spouse’s approved Form I-140 was filed by a previous employer. Am I eligible for employment authorization?
- What happens to my employment authorization if USCIS revokes my H-1B spouse’s Form I-140?
- If I am granted H-4 employment authorization, can I work anywhere (including starting my own business)?
- Can I employ other people?
Applying for Employment Authorization
- Can I file the following applications/petitions concurrently?
- An H-1B extension of stay petition, an H-4 extension of stay application, and an application for employment authorization?
- A new H-1B petition, a new H-4 change of status application, and an application for employment authorization?
Please note that under this scenario, we cannot adjudicate your Form I-765 until we make a determination about both your H-1B spouse’s eligibility for H-1B status under sections 106(a) and (b) of AC21 and your eligibility for H-4 nonimmigrant status.
In either of the above scenarios, USCIS will not begin the 90-day interim EAD clock until we make a decision on your spouse’s H-1B status and your H-4 status.
- Will the Form I-765 be a paper-based application, or will it be an electronic application?
- What evidence should I, as an H-4 nonimmigrant, submit to demonstrate my eligibility for employment authorization?
- Evidence of your H-4 nonimmigrant status;
- Evidence of your qualifying spousal relationship with the H-1B principal nonimmigrant (such as a copy of your marriage certificate);
- Evidence of your spouse’s H-1B nonimmigrant status, such as:
- A copy of Form I-797, Notice of Approval, for Form I-129 filed on your H-1B spouse’s behalf (if already approved and not being filed with your application for employment authorization);
- A copy of your H-1B spouse’s Form I-94, Arrival-Departure Record;
- The receipt number of the approved Form I-129 filed on behalf of your H-1B spouse (if already approved and not being filed with your application for employment authorization); and/or
- A legible copy of the personal data pages of your H-1B spouse’s passport, the visas on which he or she last entered the United States, and the latest U.S. admission stamps in his or her passport.
- If you are applying for employment authorization based on your spouse’s grant of H-1B status under AC21 §§ 106(a) and (b), include the following evidence:
- Evidence
that your H-1B spouse is the beneficiary of a Permanent Labor
Certification Application filed at least 365 days before the expiration
of his or her six-year limitation of stay as an H-1B nonimmigrant. Such
evidence may include, but is not limited to:
- A copy of a print out from the Department of Labor’s (DOL’s) website or other correspondence from DOL showing the status of the Permanent Labor Certification Application filed on your H-1B spouse’s behalf; or
- If DOL certified the Permanent Labor Certification, a copy of Form I-797, Notice of Receipt, for Form I-140 establishing that Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification Application; OR
- Evidence that
your H-1B spouse’s Form I-140 was filed at least 365 days before the
expiration of his or her six-year limitation of stay as an H-1B, and the Form I-140 remains pending. Such evidence may include, but is not limited to:
- A copy of your H-1B spouse’s Form I-797 Receipt Notice for Form I-140; or
- The receipt number of your H-1B spouse’s the pending Form I-140 filed on behalf of the H-1B spouse.
- If you are applying for employment authorization based on your spouse being a beneficiary of an approved Form I-140,
include evidence that the Form I-140 filed on your H-1B spouse’s behalf
has been approved. Such evidence may include, but is not limited to:
- A copy of the Form I-797 Approval Notice for Form I-140; or
- A copy of the Form I-797 Receipt Notice for Form I-140 along with an explanation about why the Form I-797 Approval Notice is unavailable.
Such attestation can include the receipt number of the most current Form I-129 extension of stay filed on your H-1B spouse’s behalf or the receipt number of the approved Form I-140 petition filed on your H-1B spouse’s behalf, and the petitioner’s/beneficiary’s names in the underlying Form I-129 or I-140. If you cannot obtain such secondary evidence, explain your inability to do so and submit two or more sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances.
- Will USCIS require me to submit original documents with my application for employment authorization?
- Will premium processing be available for Form I-765, Application for Employment Authorization?
- What if my Form I-539 for H-4 status is still pending on May 26, 2015? Can I file Form I-765 immediately? Will USCIS match my Form I-765, Application for Employment Authorization to my pending Form I-539?
How We Will Adjudicate Your Application for Employment Authorization (Form I-765)
- Will USCIS cut off Forms I-765 after receiving the anticipated number of applications stated in the rule?
- Does USCIS expect any changes to the Form I-140 immigrant petition process based on this regulation change?
- I am an F-1 nonimmigrant who possesses Optional Practical Training (OPT) employment authorization. Would there be continuous employment if I file a petition requesting H-4 nonimmigrant status concurrently with an EAD?
- Will USCIS backdate the beginning validity date on the EAD to the start of my H-4 status if the Form I-539 is adjudicated before Form I-765?
While Waiting for USCIS to Adjudicate Your Application for Employment Authorization (Form I-765)
- Can I travel while my Form I-765 is pending?
Finally, please note that if you file Form I-765 concurrently with Form I-539 requesting a change to H-4 status from a different nonimmigrant classification, we will deny your Form I-539 as abandoned if you travel abroad while your Form I-539 is pending. In this case, we would also deny your Form I-765.
- How long will it take USCIS to adjudicate my Form I-765?
Once You Receive Employment Authorization
- Can I use my EAD to enter and exit the country?
Last Reviewed/Updated: 05/20/2015
For more questions and answers on H4 new employment authorization law check SP Law Forum.
Here are some asked questions and answers from our forum.
My extension is underway. Can I apply for the H4 EAD? - See more
at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
My
extension is underway. Can I apply for the H4 EAD? - See more at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
My
extension is underway. Can I apply for the H4 EAD? - See more at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
My extension is underway. Can I apply for the H4 EAD? - See more
at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
My extension is underway. Can I apply for the H4 EAD? - See more
at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
H4 EAD - status during extension
H4 EAD - Prior EAD Exists while on L2. New or Renewal
H4 EAD - Travel to India while application is processing
F1 OPT to H4 EAD
H4 to F1 Change of Status with spouse I140 approved
H4 EAD Validity/Renewal
H4 EAD with H1B/H4 visa expiring on 9/1/2015
Applications for h4 EAD
Applying for an H4 visa work permit
H4 with misdemeanor
H4 EAD on AC 21 106 a or b extension
H4 EAD on proposed rule! Hopefully the nightmare will end for some
My
extension is underway. Can I apply for the H4 EAD? - See more at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
My
extension is underway. Can I apply for the H4 EAD? - See more at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
My extension is underway. Can I apply for the H4 EAD? - See more
at:
http://www.splawforum.com/threads/400-My-extension-is-underway-Can-I-apply-for-the-H4-EAD#sthash.KBY2Z5rP.dpuf
Here are some videos of questions and answers on H4 EAD
Possible Request for Evidence on the New H4 EAD Rule
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