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USCIS Announces Employment Authorization Eligibility For Certain H-4 Spouses

February 26, 2015

As part of President Obama’s executive action on immigration reform, the U.S. Citizenship and Immigration Services (USCIS) announced eligibility for select H-4 dependent spouses of H-1B visa holders to obtain employment authorization.

Who is Eligible?

The amended regulations will permit qualifying H-4 dependent spouses to accept employment in the United States. The benefit will be limited to H-4 dependent spouses, not children, of H-1B nonimmigrants who are the beneficiaries of the employer-sponsored permanent residency process. Specifically, the H-1B spouse must have either been sponsored for permanent residency and is the recipient of an approved Form I-140, Immigrant Petition for Alien Worker or has been granted H-1B status in the U.S. under the act commonly known as AC21, which permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year maximum stay in H-1B status.

When Can I File?

Eligible H-4 dependent spouses may begin submitting Applications for Employment Authorization directly to USCIS as of May 25, 2015.

What is the Processing Time?

USCIS is expected to receive nearly 200,000 applications for H-4 EADs in the first year of filings. H-4 EAD applicants will likely face significant backlogs beyond the current 90-day processing time for EAD applicants in other classifications.

What is the EAD Validity Period?

The H-4 dependent spouse will likely be granted an EAD validity period equal to the H-1B nonimmigrant’s remaining authorized period of stay but no more than three years. The EAD may be extended alone or concurrently with their spouse’s H-1B extensions.

ManciniHow Can Employers Prepare?

Employers should consider how they will handle a few issues once the new rules go into effect. First, current H-1B employees are likely to put increased pressure on their U.S. employers to file for permanent residency on their behalf so that their spouse may obtain work authorization. Employers should review or create policy consistent with the regulations regarding whether the employer or employee is responsible or required to pay for H-4, EAD and/or permanent residency costs.

Second, employers who hire H-4 employees must ensure compliance for I-9 purposes. Specifically, an H-4 employee must have the physical EAD card in hand to establish employment authorization. In addition, employers should take care to track EAD validity periods and work with H-4 employees to ensure maintenance of status and continuous employment authorization while employed with their organization.

If you would like assistance with respect to either policies relating to H-4 applications, or else compliance issues, please reach out to Miller Canfield’s immigration team.

Rebecca Mancini