EADs for Certain H-4 Spouses

EADs for Certain H-4 Spouses Starts May 26th

On February 24, 2015, the Department of Homeland Security (DHS) confirmed that it will allow employment authorization to certain qualifying spouses of temporary H-1B workers. The immigration category for the spouse of an H-1B is called an H-4. For more on H-1Bs and H-4s see Clark Hill’s webpage. DHS’s stated purpose for this change is to reduce the economic burdens and personal stresses that H-1B nonimmigrants and their families may experience as they are sponsored for lawful permanent resident (“LPR”) status. For more regarding the employment based green card process, see Clark Hill’s webpage. This also aligns with the Obama Administration’s stated goal of retaining valuable members of the U.S.’s highly skilled workforce. It is also hoped that this new rule will decrease workforce disruptions and other harm to U.S. employers, which can be caused by the departure of H-1B workers, when the U.S. employers have sponsored LPR petitions.

It is anticipated that, by providing a means for H-4 dependent spouses to be financially independent, this rule will aid the H-1B worker and his/her family as they integrate into the U.S. culture.

It is important to note, however, that not all H-4 spouses will qualify for this new benefit. To be eligible, the H-4 spouse must be married to an H-1B worker whose employer has taken substantial steps to secure LPR status for the H-1B worker.

All H-4s must have an approved work card, called an employment authorization document (“EAD”) to begin working.

Applications can be received no sooner than May 26, 2015. Applications received sooner will be rejected.

Below are a few additional comments and helpful tips.

Summary of Requirements

• H-4 EAD applicants must submit proof that they are in a legal marriage with the H-1B worker;
• The H-1B beneficiary must be “in status” and working for the H-1B sponsor;
• The spouse must be in, or have applied for, H-4 status;
• The H-1B worker must have one of two LPR applications filed or pending on his/her behalf:
  • An approved I-140 Petition, OR;
  • An H-1B approved beyond the normal six years, based on an a pending PERM labor certification or I-140 Petition (also called AC21);
  • These applications only qualify if they are for EB-1, EB-2 or EB-3 LPR applications;
• The necessary form, payment and all other requirements for an EAD card must be included.

Concurrent Filing

DHS will not let an EAD application to be filed concurrently with an I-140 Petition for the H-1B employee. DHS confirmed that the I-140 petition mentioned above must be approved, or the 7th year H-1B must be approved, before the EAD can be filed.

Processing Times

Normally, EAD applications must be approved by DHS, or have a request for evidence (“RFE”) issued, within 90 days of filing. This timing applies to most H-4 EAD applications.

At times, spouses of H-1Bs may want/need to file an extension or change of status, and apply for an EAD card. DHS is going to allow for the EAD application, and the change or extension of status, to be filed together. However, DHS has confirmed that the 90 day clock mentioned above does not start for the EAD application, until any pending H-4 change of status or extension has been approved.

Questions and Answers

I am an H-4 dependent spouse, do I qualify for work authorization?

• If you are married to an H-1B nonimmigrant who has an approved I-140 or an approved H-1B extension beyond six years because of an employment based LPR process, you may qualify.

Is there a chance this benefit will be taken away at a later date?

• While there is no direct law with respect to work authorization for H-4 spouses, DHS has reviewed congressional intent with respect to H-1B workers. DHS believes that they have the authority to pass this regulation and that it is not likely to be taken away. Clark Hill agrees.

What if I have a pending I-485 Adjustment of Status (I-485) application, could I still apply for an H-4 EAD if I qualify?

• Yes, DHS has confirmed that under this rule, H-4 spouses may still be eligible for an EAD card on the basis of their H-4 classification. However, two EAD cards are not necessary.

Do I still qualify for an EAD if I am an H-4 spouse of an H-1B1, H-2, or H-3 nonimmigrant?

• No, this rule only applies to H-4 spouses of H-1B nonimmigrants.

Can my children apply for work authorization as well?

• No. Only spouses are covered by this rule. The H-4 unmarried children of an H-1B recipient may not apply for work authorization through this new rule. This is consistent with the treatment of children in other temporary visa categories (such as the L and E visa categories).

How long will I be able to work?

• Your EAD validity period will match the length of your remaining H-4 status.

When do I need to renew my new EAD?

• You may file your renewal up to six months in advance of the requested start date. DHS also allows you to concurrently file your EAD application with your application to change or extend H-4 status, and with your spouse’s H-1B extension or change of status.

What if I don’t have access to my spouse’s original H-1B paperwork?

• If you cannot submit the primary evidence listed in the form instructions, you may submit secondary evidence, such as an attestation that lists information about the underlying Form I-129 or Form I-140 petition, so that a DHS officer may match your EAD application with your spouse’s underlying petition. You may also request your documents from USCIS through the use of a Freedom of Information Act (“FOIA”) request, but that can be slow.

What if I want to switch to H-1B status? Will I be exempt from the cap?

• No. According to DHS, you will still be subject to the annual H-1B limitation. This rule only applies to H-4 EADs.

My spouse does not yet have an employer sponsored green card filed on his/her behalf. How long will this take before we can qualify?

• That answer depends on a number of factors. It can be over 1 year. The H-1B spouse can discuss starting this process with his/her employer.

How much will it cost?

• If you seek to have Clark Hill assist in filing an H-4 EAD, we can discuss this with the H-1B worker’s employer, or send you a fee agreement, which will confirm all fees and costs.

How long will it take to get a work card?

• Typically, applications take 60 to 90 days to approve. If an EAD application is filed with an application to change or extend status, the “90 day clock” does not start until after the underlying application is approved. See the comments above.

What do H-4s need to present to employers to meet the I-9 requirements?

• H-4s will need to present the EAD, which is a “List A” document, that proves both identity and authorization to work. Employers are required to re-verify the H-4’s work authorization before the expiration date on the EAD.

If an H-1B has to be far along in the LPR process for the H-4 to qualify to work, wouldn’t it be easier and less expensive for the H-4 just to wait for the LPR EAD card?

• That may be the case for some H-4 EAD applicants, and each situation needs to be evaluated.

How many people are expected to benefit from the new rule?

• USCIS believes that as many 55,000 people will apply for this new benefit annually. However, the overall impact on the US labor force will be minimal (less than 1%).

Is an H-4’s employment authorization automatically extended if an I-765 application to extend employment authorization application is submitted before the EAD expires?

• No. Since USCIS has 90 days to adjudicate an I-765 application, applicants should consider filing early. Applications for extension may be filed up to 180 days in advance of the expiration of the EAD.