After many years of discussion, on February 24, 2015, USCIS published a rule allowing certain H-4 spouses of H-1B non-immigrants to receive employment authorization documents just as spouses of J-1s, E-1s, E-2s and L-1s currently receive. Unlike those other categories, however, it is not enough that the spouse have non-immigrant status in the listed visa category. For an H-4 spouse to qualify, the H-1B must meet certain additional qualifications. On November 20, 2014, President Obama announced that the H-4 regulation would be included in the legal immigration reform package included with his series of executive actions on immigration. Many expected that in the spirit of liberalizing legal immigration rules to make the US more attractive for foreign talent (and make our rules more consistent with many other countries), the H-4 final rule would be tweaked to make it less restrictive than the May 2014 proposed rule. Alas, that is not the case. The rules are virtually identical with very minor exceptions noted below. However, the new rule will still be welcome news to thousands of individuals each year who will benefit.
Are all H-4s eligible for employment authorization?
No. First, the rule only applies to spouses, not minor children. And for an H-4 spouse to qualify, the H-1B spouse must meet one of the following two tests:
- Be the beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker; or
- Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).
What is an AC21 status?
AC21 dealt with a number of problems in immigration law including H-1B visa holders who were limited to six years in that status, but unable to convert to permanent residency because of lengthy green card adjudication times or per country green card limits that prevented converting to permanent residency until a priority date was current. The law (and a later amendment) ended the six year limit on H-1B time for individuals who have a labor certification or I-140 that was filed 365 days before the H-1B time is set to end. In these cases, the H-1B time may be extended in one year increments.
When will applications be accepted?
Applications on form I-765 will not be accepted until May 26, 2015 which is 90 days from the date the rule was published. Applications received before that date will not be accepted. Applicants can file the I-765 concurrently with an I-539 application for an H-4 change of status or H-4 extension.
What needs to be included with the application?
In addition to the I-765 form, the applicant must provide evidence of
- the spousal relationship (such as a marriage certificate),
- that the H-1B is the beneficiary of an approved I-140 or has been provided H-1B status under AC21,
- the H-1B beneficiary is currently in H-1B status (such as by including a copy of the visa stamp and I-94 and a recent paystub) and
- the H-4 spouse is currently in H-4 status (such as by including a copy of the visa stamp and I-94)
How does one prove that there is a “spousal relationship”?
The rule does not define this, but the comments note that “USCIS officers are specially trained to recognize indicia of fraud, including marriage fraud.” The I-539 form requires documentation of the spousal relationship, however, and a copy of the marriage certificate is usually all that is required.
How much will it cost?
The current I-765 application fee is $380.
How long will it take to get a work card after that?
USCIS regulations grant the agency 90 days to adjudicate I-765 applications and premium processing is not available. Typically, applications take 60 to 90 days to approve. If an I-765 is filed concurrently with an I-539 application, the 90 day clock does not start until after the I-539 is approved. Therefore, if getting employment authorization quickly is a priority, H-4 applicants may want to travel outside the US and reenter as an H-4 and then immediately file the I-765.
What do H-4s need to present to employers to meet I-9 requirements?
In most cases, an H-4 will present the I-766 Employment Authorization Document (EAD) which is a “List A” document that proves both identity and authorization to work. Employers are required to re-verify the H-4’s work authorization before the expiration date on the EAD.
How does the final rule compare to the proposed rule from May 2014?
The rules are virtually identical. However, the final rule notes that the I-765 may be filed concurrently with the I-539 petition and the application must include evidence of the “spousal relationship.”
That may be the case for many, but for nationals of some countries (notably, India, China and the Philippines) and everyone in the EB-3 category which is usually backlogged several years, the H-4 rule should make it possible to work much earlier than simply waiting on a green card.
How many people are expected to benefit from the new rule?
USCIS believes that as many 55,000 people will apply for this new benefit annually. However, the overall impact on the US labor force will be minimal (less than 1%).
Are H-4s with dependent spouses permitted to file for H-4 employment authorization?
In the comments to the new rule, DHS notes that H-4s with pending adjustment applications are still eligible for employment authorization on the basis of their H-4 classification. They have a choice on which basis to apply for work authorization.
Are H-4 spouses of other types of H visa holders (H-1B1, H-2 and H-3s) eligible for employment authorization?
DHS did not include these individuals in the rule.
Is an H-4’s employment authorization automatically extended if an I-765 application to extend employment authorization application is submitted before the EAD expires?
No. Given USCIS has 90 days to adjudicate an I-765 application, applicants should consider filing early. Applications for extension may be filed up to 180 days in advance of the expiration of the EAD.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.