New DHS Rule Offering Employment Authorization to Qualifying H-4 Dependent Spouses

New DHS Rule Offering Employment Authorization to Qualifying H-4 Dependent Spouses

On February 24, 2015, the Department of Homeland Security (DHS) announced that it has finalized a rule allows certain qualifying H-4 dependent spouses of H-1B nonimmigrants to apply for Employment Authorization Documents (EADs). Unfortunately the new rule does not apply to all H-4 holders. The following answers some frequently asked questions about the new rule.

(1) Who does the new rule apply to?

The new rule only applies to H-4 dependent spouses of H-1B holders where the H-1B holder has an approved I-140 – or – has extended their H-1B status for one year beyond the six year maximum based on a PERM labor certification or I-140 that is pending for more than one year under AC21 §106(a) and (b).

Please note – The H-1B holder has to have already received the one year extension under AC21 §106(a) and (b) for the H-4 dependent spouse to be eligible to apply for an EAD under this part of the new rule.

(2) Who does the new rule not apply to?

Unfortunately the new rule does not apply to the following:

• H-4 dependent children
• Spouses of H-1B holders who are in a status other than H-4 (e.g., H-1B, F-1, J-1)
• H-4 dependent spouses where only the H-4 dependent spouse has an approved I-140 and the H-1B holder does not have an approved I-140
• H-4 dependent spouses where the H-1B holder has a pending I-140 (other than those who fall under AC21 §106(a) and (b))

(3) When does the new rule go into effect?

Barring any unforeseen delays, USCIS will begin accepting I-765 applications on May 26, 2015. USCIS will reject any I-765 applications filed for H-4 dependents before May 26, 2015. Eligible H-4 dependent spouses can file their I-765s any time on or after May 26, 2015.

(4) How does the EAD application process work?

H-4 dependent spouses must submit a Form I-765, Application for Employment Authorization (available here).  The Form I-765 must be paper filed. The applicant must include evidence demonstrating that he/she is currently in H-4 status and that the H-1B nonimmigrant is current in H-1B status. The final rule also indicates that H-4 dependent spouses will be permitted to concurrently file the Form I-765 with an Application to Extend/Change Nonimmigrant Status (Form I-539).

USCIS will provide information about the application procedures and required evidence on its website close to the date the rule goes into effect.

(5) What is the I-765 filing fee?

$380

(6) Are fee waivers available?

The final rule states the following with regard to fee waivers:

DHS declines to establish a general fee waiver for the Form I-765 filed by eligible H-4 dependent spouses under this rule. See 8 CFR 103.7(d). USCIS will consider fee waiverrequests on a case-by-case basis. See 8 CFR 103.7(c)(3)(viii). As noted above, given the nature of the H-1B nonimmigrant's employment, a showing of inability to pay as requiredby the regulation would be the exception rather than the rule.

(7) What is the processing time for the I-765?

USCIS will aim to process the I-765 within 90 days.

Please note – If the I-539 (application to change status to H-4) and I-765 are filed concurrently, the 90-day clock for the I-765 technically starts on the day the I-539 is approved. USCIS will try to process the I-539 and I-765 together but cannot guarantee that it both will be approved on the same day.

(8) Will premium processing be available for the I-765?

No.

(9) When can the H-4 dependent spouse start using the EAD to work in the U.S.?

Once the I-765 is approved and the H-4 dependent spouse receives the EAD, the H-4 dependent spouse may begin working in the U.S. Please note that the current average processing time for the I-765 is 90 days.

(10) For how long will the EAD be valid?

The EAD validity period should match the validity of the authorized stay for the H-4 dependent spouse.

Please note – The EAD validity is controlled by the validity dates listed on the EAD card. Employment for the H-4 dependent spouse is only authorized while he/she has an EAD card that is valid.

(11) Can the EAD be renewed?

Yes, as long as the H-1B holder and H-4 dependent spouse maintain a valid status and the H-4 dependent spouse remains eligible under the rule, an I-765 can be filed to renew the EAD card. Please keep in mind that the current average processing time for the I-765 is 90 days, therefore, the I-765 should be filed at least 90 days before the current EAD expires to avoid an employment gap. If the EAD expires before the new EAD card arrives, the H-4 dependent spouse must stop working until he/she receives the new EAD card.

(12) Can the H-4 dependent spouse use the EAD to work for any U.S. employer?

Yes. Unlike an H-1B which is tied to the H-1B petitioning employer, the H-4 dependent spouse can use the EAD issued under this rule to work for any U.S. employer. The H-4 dependent spouse can also use the EAD to work for multiple U.S. employers or to start his/her own business.

(13) Can the H-4 dependent spouse travel outside the U.S. while the I-765 application is pending?

As long as the H-4 dependent spouse has a valid H-4 visa stamp, he/she can travel outside the U.S. while the I-765 is pending.

Please note – The EAD issued under this rule will only provide employment authorization (i.e., it will not be a “combo card”). Therefore, the H-4 dependent spouse will still need a valid H-4 visa stamp to travel outside the U.S.

(14) If the H-1B holder loses his/her H-1B status, can the H-4 dependent spouse continue to use the EAD to work in the U.S.?

No. The EAD will only be valid while the H-4 dependent spouse maintains his/her H-4 status. If the H-1B holder loses his/her H-1B status (e.g., lost his/her H-1B employment, used the I-485 EAD/AP to work/travel), the H-4 dependent spouse will automatically lose his/her H-4 status.

(15) I am an H-1B holder and my approved I-140 was withdrawn/revoked. Does my H-4 dependent spouse qualify for an EAD under this rule?

No. The H-1B holder’s approved I-140 must remain valid for the H-4 dependent spouse to be eligible for an EAD under this rule.

(16) I am an H-1B holder and my spouse is currently on a nonimmigrant visa status other than H-4. Can he/she switch to H-4 status to apply for the EAD under this rule?

If otherwise eligible under the rule, yes. The final rule indicates that H-4 dependent spouses will be permitted to concurrently file the Form I-765 with an Application to Extend/Change Nonimmigrant Status (Form I-539). Please note that the current average processing time for the I-765 is 90 days. If your spouse loses his/her employment authorization through his/her current nonimmigrant visa status before receiving the H-4 EAD, he/she must stop working upon losing his/her employment authorization until he/she receives the H-4 EAD.

The benefit of having the H-4 EAD is that your spouse would have the freedom to change employers without having to worry about transferring his/her visa status. The risk of changing to the H-4 EAD is that the EAD is only valid while the H-4 visa status is valid. If the H-1B holder loses his/her H-1B status (i.e., job loss, employer refuses to extend the H-1B, reaches the six-year limit, etc.), the H-4 dependent spouse would also lose his/her H-4 status and the EAD.

Additionally, your spouse would have to pay the I-539 filing fee ($290) and the I-765 filing fee ($380).

(17) My spouse is currently on a J-1 subject to 212(e). Is he/she eligible to change status to H-4 and apply for the EAD?

No. Unfortunately J-1 holders subject to the 212(e) two-year home residency requirement are not eligible to change status to H-4. Your spouse must first either satisfy the requirement by returning home for at least two years or get an approved J waiver before he/she would be eligible for H-4 visa status and the EAD under the new rule.

(18) The priority date for my approved I-140 is current and my H-4 spouse and I plan to file our I-485s. What are the benefits/costs of applying for the H-4 EAD v. applying for an EAD based on an I-485?

In general, we recommend that clients maintain a valid nonimmigrant visa status throughout the green card application process as a back-up in case the I-485 is denied. It the I-485 is denied and the applicant does not have a valid nonimmigrant visa status, he/she would likely have to leave the U.S. immediately. The use of the I-485 EAD by the H-4 dependent spouse would invalidate his/her H-4 status. If the H-4 dependent spouse instead uses the H-4 EAD, he/she would maintain his/her H-4 visa status.

The cost of applying for the H-4 EAD is financial. The H-4 EAD application requires payment of the I-765 application fee ($380) while the I-765 filed based on the I-485 is free.

(19) If my I-140 is approved, can our I-485s still be denied?

Yes. Even if your I-140 is approved, your I-485 can still be denied for a number of reasons, including:

• Criminal history;
• Security threat (e.g., affiliation with a terrorist organization);
• Communicable disease (e.g., TB, syphilis);
• Misrepresentations on forms and documents submitted to USCIS;
• Public charge (i.e., not able to financially support yourself in the U.S.);
• Missing scheduled appointments with USCIS (e.g., biometric appointment);
• Unauthorized employment or out-of-status for more than 180 days since your last lawful entry to the U.S.;
• The primary beneficiary’s failure to stay engaged in the same or similar field that was the basis for the approved I-140 petition.

(20) Can North America Immigration Law Group help me file the I-765 for the EAD card based on my H-4 status?

No. Unfortunately we do not handle H visa issues. We recommend that the H-1B holder contact his/her H-1B employer and/or attorney to discuss filing the I-765 for the H-4 dependent spouse.