On May 26, 2015, USCIS began accepting work authorization applications for certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. This is a key element of President Obama’s Immigration Accountability Executive Action initiative announced on November 20, 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs. USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years.
To qualify for work authorization, under the new regulation, the H-1B spouse of the H-4 applicant must either have an approved I-140, Immigrant Petition, a pending I-140 petition or have been granted an extension of H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21). These extensions are granted to H-1B workers who have filed PERM applications at least 365 days prior to the six-year max out date, have an I-140 petition pending or have an approved I-140 petition.
Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee. USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an Employment Authorization Document (EAD), he or she may begin working in the United States. Supporting evidence to be submitted with Form I-765 includes the following:
- Evidence of the spousal relationship to the H-1B holder;
- Evidence that the H-1B holder is the beneficiary of an approved I-140 or has been granted a one-year H-1B extension under AC-21 pursuant to a PERM or I-140 that has been pending for 365 days or more;
- Evidence that the H-1B beneficiary is currently in H-1B status; and
- Evidence that the H-4 nonimmigrant spouse is currently in H-4 status.
The regulation also confirms that USCIS will accept an H-4 I-765 application filed concurrently with the H-1B spouse’s Form I-129 application to extend H-1B status beyond the sixth year and the H-4’s Form I-539 extension application. In addition, spouses of H-1B visa holders, who are in a different non-immigrant status, will be permitted to submit Form I-765 concurrently with a Form I-539 application to change status to H-4. In both of these situations, the EAD application will not be decided until after the extension or change of status is approved.
Premium processing for the I-765 will not be available and USCIS will not accept H-4 I-765s filed concurrently with a Form I-140 immigrant worker petition. In a related note, USCIS suspended Premium Processing for all H-1B extension applications on May 21, 2015 for 90 days. The agency stated that this unprecedented move was necessary so it could shift resources to adjudicate the large number of H-4 work authorization applications anticipated in the first few weeks of the new program.
It is important to note that H-4s cannot begin working until their I-765 is approved and they receive the actual USCIS employment authorization document. Once approved, the document should be valid through the expiration of their period of stay, which could be up to three years. An EAD will allow the holder to work for any employer in the United States and to obtain a Social Security number.
By regulation, I-765 applications are required to be processed in 90 days, although USCIS regularly violates this requirement. Most in the immigration community are expecting significant delays for this initial phase of the new program, as it will be similar to the proverbial python trying to swallow a deer. Once the initial group is processed, levels should return to a steadier stream, enabling USCIS to adapt and return to normal processing times. Updates on processing times and adjudication trends will be covered by this blog.