On February 24, 2015, the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS) announced that certain H-4 dependent spouses of H-1B nonimmigrant workers pursuing employment-based lawful permanent resident (LPR) status will be eligible for employment authorization beginning May 26, 2015.

This announcement follows the Executive Action announced by President Obama on November 20, 2014. Among the many initiatives included in the Executive Action to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs was to extend eligibility of employment authorization to certain H-4 dependent spouses.

In issuing the final rules to amend the regulations, DHS explains that a primary purpose of the amended regulations is to help U.S. employers retain highly skilled H-1B nonimmigrant employees who are on the path to lawful permanent residency. Currently, many H-1B nonimmigrants and their families are faced with economic burdens and personal stresses as the transition from nonimmigrant to LPR status takes several years in most cases due to visa availability applicable for specific countries, primarily India and China. DHS expects that reducing the burdens and stresses of highly skilled H-1B employees will benefit the U.S. employers by minimizing labor disruptions caused by the departure from the United States of such employees.

Eligible H-4 dependents include spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries¬†of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status beyond the initial six-year limit based on PERM applications or immigrant petitions that have been pending for 365 days or more.

To obtain employment authorization, eligible H-4 dependent spouses must file an application for employment authorization along with the required $380 fee and supporting evidence. Once USCIS approves the application and issue an Employment Authorization Document (EAD), the H-4 dependent spouse may accept employment in the United States.

For efficient processing, DHS will permit concurrent filing of the application with the application to extend or change status to H-4. However, DHS noted that the application for employment authorization will be adjudicated only after the determination to grant the H-4 status has been made which means that there may be a possible delay between the grant of the H-4 status and the issuance of the EAD.

DHS also announced that EADs will be issued with validity dates that match the date of authorized period of admission in H-4 status. Accordingly, EAD s may be issued with a validity period of up to three years for most eligible dependent spouses.

USCIS will begin accepting applications for employment authorization from dependent spouses in H-4 status on May 26, 2015.