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Final Rule Extending Employment Authorization to Certain H-4 Dependent Spouses

On February 25, 2015, the final rule related to employment authorization for certain spouses of H-1B specialty workers was published in the Federal Register (80 FR 10283). The rule will become effective on May 26, 2015, the date when USCIS will begin accepting employment authorization applications on behalf of eligible H-4 dependent spouses of H-1B workers.

Individuals holding H-4 dependent status may apply for employment authorization beginning May 26, 2015, if they meet the following eligibility criteria:


  1. The principal H-1B worker has an approved I-140 Immigrant Petition for Alien Worker, or

  2. The principal H-1B worker has received an H-1B extension beyond the sixth year, pursuant to the American Competitiveness in the Twenty-First Century Act (AC21), based on an I-140 petition or labor certification (PERM) filed at least 365 days prior to the date when the individual exhausted the six years of H-1B status.

According to the final rule, the employment authorization conferred upon eligible H-4 spouses is not automatic or incident to H-4 status. Instead, eligible individuals must apply for employment authorization with USCIS by filing an I-765 Application for Employment Authorization together with the applicable filing fee and supporting documents establishing their eligibility. If approved, the applicant will be issued an Employment Authorization Document (EAD) card valid for the remaining validity period of the underlying H-4 status. The EAD will authorize the H-4 spouse to work for any U.S. employer during its validity period.

To be eligible for EAD under this new rule, applicants will have to show evidence of (a) spousal relationship to the principal H-1B worker; (b) current H-4 status of the dependent spouse; (c) evidence that the principal H-1B worker is the beneficiary of an approved I-140 Petition or has received a one-year H-1B extension beyond the sixth year pursuant to AC21; and (d) evidence that the principal H-1B worker maintains valid H-1B status.

USCIS will accept I-765 Applications for Employment Authorization filed concurrently with I-539 Applications to Change Status to H-4 dependent spouse from eligible individuals holding a different non-immigrant status. USCIS will also accept I-765 Applications for Employment Authorization from eligible H-4 spouses filed concurrently with petitions seeking to extend the principal H-1B worker’s status beyond the sixth year and applications to extend the H-4 spouse’s respective dependent status. However, the H-4 spouse’s EAD application will not be adjudicated until after the extension of status is approved. Premium processing for the H-4 EAD applications will not be available.

This rule does not confer employment authorization to H-4 dependent children. This rule also does not confer employment authorization to H-4 spouses during the principal worker’s initial six years in H-1B status.

For additional information regarding this new regulation, contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or at (608) 252-9291.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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