New H-4 Work Authorization Rule
By Adam Cohen
Yesterday morning, the Department of Homeland Security released the long-awaited employment authorization rule for H-4 visa holders, which will allow certain H-4 spouses to work if the H-1B principal is seeking employment-based lawful permanent resident status.
As most H-1B visa holders and their employers are aware, H-4 dependents (spouses and unmarried children under 21 years of age) are not currently eligible for employment authorization. This often causes personal and economic hardships for the families of H-1B nonimmigrants. For example, in the physician immigration context, when the J-1 physician takes the common steps of acquiring a Conrad-based J-1 waiver and changing status to an H-1B to satisfy a three year work commitment as part of the waiver, the J-2 spouse is left in a very difficult position. After all, many J-2s work as physicians themselves or in various other occupations, and therefore H-4 status would only serve to damage their career prospects and even the family’s financial well being. A creative attorney may be able to provide alternate options for the J-2 spouse, but it certainly helps to have a work authorized option in the H-4 category.
Not all H-4 dependents will qualify for employment authorization. Eligible H-4 visa holders are only spouses of H-1B nonimmigrants who (1) are the principal beneficiaries of an approved Form I-140, an employment-based petition, OR (2) 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). AC21 permits H-1B visa holders with a pending I-140 petition or adjustment of status application to extend their status in one-year increments beyond six years, where 365 days or more have passed since the filing of a labor certification or the I-140 petition.
This rule favors beginning the green card process sooner rather than later for the H-1B visa holder, so that the spouse can timely receive work authorization in H-4 status. For most H-1Bs, the receipt of an approved I-140 petition will be the goal. The employer who can facilitate this goal will have greatly benefited his or her employee by alleviating family stress, economic strain, and even family separation where the H-4 spouse must move to another city to find work in H-1B or another status. This is particularly helpful for Indian and Chinese employees, as well as all employees in the EB-3 category, who cannot even acquire general work authorization for their spouses through a pending green card process, because the backlogs are several years long.
Under this new rule, eligible spouses in H-4 status will file a Form I-765 application for employment authorization, along with supporting documentation and a $380 filing fee. Once approved, the H-4 spouse will receive an Employment Authorization Document (EAD) and may begin working. USCIS will begin accepting applications on May 26, 2015. It is estimated that the number of individuals eligible to apply for employment authorization could be as high as 179,000 applicants in just the first year.
While work authorization for H-4 spouses will not be nearly as broad as it is for L-2s, J-2s, and E visa spouses, at least there is one more option available to help families.