Employment Authorization for H-4 Dependent Spouses

On May 26, 2015, the U.S. Citizenship and Immigration Service announced that dependent spouses of H-1b immigrants (H-4 Status) will be eligible to obtain employment authorization. In order to qualify they need to be the principal beneficiaries of their H-1b nonimmigrants who has an approved Employment Based Immigrant Petition (I-140). The second option are for them to be spouse dependents of those granted H-1B status under the Twenty-First Century Act of 2000 which granted H-1b nonimmigrants seeking lawful permanent residence to work and remain in the United states beyond the six-year limit on their H-1b status.

Some Frequently Asked Questions about the new H-4 Employment Policy.

1. As an H-4 nonimmigrant, would my employment authorization be limited to just my H-1B spouse’s time under AC21?

   Your employment authorization expiration date generally will match your H-4 nonimmigrant status expiration date. USCIS may grant employment authorization for the maximum time allowed even if the AC21 §§ 106(a) and (b) portion of your H-1B spouse’s extension is only for part of the full validity period.

2. Is this a one-time opportunity?

   No, this is not a one-time opportunity. If you are a H-4 nonimmigrant who obtains employment authorization under this rule change, you may file to renew your employment authorization and receive a new EAD as long as you remain eligible for employment authorization.

3. Do I need to be in the United States to apply for employment authorization based on my H-4 status?

   Yes, you must be in the United States to apply for employment authorization. You must be in H-4 status to be eligible for employment authorization, and an individual outside of the United States cannot be in H-4 status.

4. Am I eligible for employment authorization if USCIS revoked my H-1B spouse’s approved Form I-140 petition?

   In order to qualify for employment authorization as an H-4 nonimmigrant, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140.

   If USCIS revokes the Form I-140 petition, your H-1B spouse is no longer the beneficiary of an approved Form I-140. Therefore, you would not qualify for employment authorization based on that eligibility criterion.

   You may still qualify for employment authorization if your H-1B spouse has received an extension of stay under sections 106(a) or (b) of AC21.

5. My H-1B spouse’s approved Form I-140 was filed by a previous employer. Am I eligible for employment authorization?

   USCIS does not require that the approved Form I-140 be filed by your spouse’s current employer or by the same employer who filed your H-1B spouse’s Form I-129, Petition for a Nonimmigrant Worker.

6. What happens to my employment authorization if USCIS revokes my H-1B spouse’s Form I-140?

   We have the discretion to revoke your employment authorization if your H-1B spouse no longer has an approved Form I-140 or is no longer eligible for H-1B status under sections 106(a) and (b) of AC21.

7. If I am granted H-4 employment authorization, can I work anywhere (including starting my own business)?

   Yes. If you are granted employment authorization based on your H-4 status, your employment authorization is unrestricted. This means that your employment authorization is not limited to a specific employer. It also does not prohibit self-employment or starting a business.

8. Can I employ other people?

   As noted above, employment authorization based on H-4 status under 8 CFR 274a.12(c)(26) is unrestricted. Such employment authorization does not prohibit self-employment, including situations where the H-4 nonimmigrant hires individuals as employees of their business.

9. What evidence should I, as an H-4 nonimmigrant, submit to demonstrate my eligibility for employment authorization?

   When applying for employment authorization based on your H-4 nonimmigrant status, submit the following with your application to demonstrate eligibility:

• 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
• Evidence of your spouse’s grant of H-1B status under AC21 §§ 106(a)
• 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.

10. Can I use my EAD to enter and exit the country?

    No. An EAD issued to an H-4 dependent spouse under 8 CFR 274a.12(c)(26) is not an entry document.

Tags: employment authorization for h-1b, Employment Based Immigrant Petition in the US, frequently asked questions for H-4 Employment Policy, H-1b nonimmigrants, H-4 Employment Policy faq, Principal beneficiaries of H-1b nonimmigrants, US H-4 Employment Policy

Category: US Immigration, US Spouse Visa

About the Author (Author Profile)

Mr. Robert R. Virasin is a graduate of the University of California, Los Angeles with a Bachelor Degree in Political Science, Mr. Virasin completed his Juris Doctorate at the University of Houston and a Masters of Laws (Business) from Chulalongkorn University, Bangkok. Mr. Virasin is a member of the State Bar of Texas and is a licensed U.S. attorney with over 15 years of legal experience. Robert is a regular contributor and author of a number of immigration related articles.