U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced earlier this week that, pursuant to a published regulation effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States. DHS states that the rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.
Eligible individuals include certain H-4 dependent spouses of H-1B (temporary worker) nonimmigrants who:
- Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or,
- Have been granted H-1B status under sections 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. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H- 1B status when:
A. 365 days or more have passed since the filing of any application for a permanent labor certification (PERM) filed by an employer for an alien in H-1B status to obtain status as an employment-based (EB) immigrant, or
B. 365 days or more have passed since the filing of an employment-based (EB) immigrant 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 in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States. 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. USCIS reminds potentially eligible persons that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.