Starting May 26, 2015, certain spouses of H-1B nonimmigrants will become eligible to apply for employment authorization. Currently, spouses and unmarried minor children of H-1B nonimmigrants, who hold H-4 status, are not eligible for employment authorization. The H-1B is a work visa for professionals to work in specialty occupations. Unlike other work visas, such as the L-1 (intracompany transferee) or E visa (treaty-trader or treaty investors), spouses of H-1B visa holders who hold H-4 status, are not eligible to apply for employment authorization.
When an employer sponsors an H-1B worker for a green card, the H-1B worker may be approved for the work visa but still have to wait years before being able to complete the final step in obtaining their green card. Only after the H-1B worker, and their spouse, submit applications for the final stage of the green card process, is the spouse first eligible to work in the U.S. During these years of waiting to complete the final stage, the H-1B spouse in H-4 status is not eligible to work.
Starting May 26, 2015, eligible individuals will include those H-4 spouses of H-1B nonimmigrants who:
1. Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker, or
2. Have obtained extensions in their H-1B status beyond the six-year limit in H-1B status, pursuant to section 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act.
These “Acts” are provisions that allow H-1B workers to obtain H-1B extensions beyond the regulatory six-year cap on H-1B status, because their employer applied for an employment-based green card on their behalf early enough to be eligible to apply for further extensions. Essentially, if an H-1B worker is the beneficiary of an approved employment-based immigrant petition, of if an employer started the employment-based green card process early enough so that the H-1B worker is now obtaining H-1B extensions beyond the sixth year, then the H-4 spouse can apply for employment authorization. Under the new rule, eligible H-4 spouses will file Form I-765, Application for Employment Authorization, with supporting evidence and the USCIS filing fee.
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