Are you that “certain someone”? That “certain spouse” of an H-1B worker who will be eligible for H-4 work authorization? Not sure? Here’s the scoop.
At long last, on Wednesday, February 25, 2015, the US Department of Homeland Security (DHS) published a Federal Register Notice captioned, “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule”. Per the much-awaited Notice, on May 26, 2015 (NOT earlier), USCIS will begin accepting applications from eligible applicants in H-4 status, but H-4 work authorization will not be available to all who hold H-4 status. The chosen few, those “certain spouses” who will be eligible for H-4 work authorization include:
- An H-4 spouse of an H-1B worker with an approved I-140, or
- An H-4 spouse of an H-1B worker who has been granted a 7+ year extension of H-1B time pursuant to AC21 Sections 106(a) and (b). (Note that an H-4 spouse of an H-1B worker granted a 7+ year extension under AC21 Section 104(c) would be covered under the first bullet point.)
So, not all H-4 dependent spouses will qualify to apply for an H-4 EAD (employment authorization document). H-4 children are also ineligible.
An H-1B worker who is running out of H-1B time may want to consider whether it makes sense to change to H-4 status and seek work authorization—that is, if married to an H-1B worker who would enable the work authorization criteria to be met. Fortunately, there is a provision for concurrent filing of the H-4 application and the EAD application.
Typically, it takes about 90 days from the date of USCIS receipt of an EAD application for the EAD card to be issued. It’s not clear whether it will take longer given that there is likely to be a very large number of filings seeking H-4 work authorization.
Careful consideration and strategizing must be undertaken to determine eligibility, the best course of action, and timing. Please feel free to contact us if you need assistance.
Ms. Wadhwani is a Partner in the Immigration Group at Fox Rothschild LLP. She may be reached at firstname.lastname@example.org.