H-4 Spouses Apply for Employment Authorization Document

As of May 26, 2015, the United States Citizenship and Immigration Services (USCIS) finally began accepting applications for employment authorization documents (EADs) from qualifying H-4 spouses of H-1B temporary work visa holders. USCIS has published an updated form with instructions, filing tips and FAQ on its Web site. The USCIS director, Leon Rodriguez, announced on May 28 that the Department of Homeland Security is extending the employment authorization eligibility for certain H-4 visa holders who are in the process of obtaining a Green Card or undergoing PERM processing.

Despite the fact that EAD is extended to only eligible H-4 visa holders, there are many benefits attached to an EAD and individuals with H-4 status are encouraged to determine whether they qualify, and if so, apply for an EAD. In the simplest terms, an EAD card is a work permit issued by USCIS that provides its holder the legal right to obtain employment in the United States. Although it resembles a Green Card in purpose and a credit card in style, it is not the same thing. EADs are typically issued for a specific period of time based on each individual applicant’s circumstances. Obtaining an EAD also makes the holder eligible for Social Security benefits. Currently there are over 40 types of immigration status that make individuals eligible to apply for an EAD, and the newest addition to that group is the H-4 spouses.

H-4 visa holders who are eligible for employment authorization to work in the United States for an established period of time include those that fall under one of two categories: (1) individuals that have an approved I-140, which is the immigration petition for foreign citizens to obtain a Green Card or permanent residency in the United States, or (2) those whose spouses with H-1B visa status are extended for beyond 6 years under AC21 Act, which allows H-1B holders seeking a Green Card to work and remain within the United States beyond 6 years, even if their Green Card or permanent resident status is pending. Also, even if an H-4 visa holder is granted an EAD, they are not required to obtain employment, but they may do so at their earliest convenience.

It is estimated that this new rule will grant eligibility to nearly 180,000 H-4 visa holders in the first year and an estimated 55,000 annually every year after that. Under the proposed rule, 97,000 H-4 visa holders are immediately qualified for receive EAD. However, it is important to note that the Final Rule on Employment Authorization for Certain H- 4 Dependent Spouses only extends work authorization to some H-4 visa holders, and many argue that the eligibility categories are still too narrow and should extend to all spouses of H-1B nonimmigrants.

Still, DHS, as well as many others, expect this new rule to help many families relieve economic burdens and personal stress during their transition from nonimmigrant to lawful permanent resident status.

The rationale behind the rule is to alleviate the long wait for employment authorization that the H-4 spouses endure through the process of obtaining a Green Card, and fast track the timeframe within which they generally become eligible to apply for an EAD. The Final Rule is meant to encourage H-1B nonimmigrants who have already taken steps to become lawfully permanent residents (LPRs) of the U.S. to not abandon their efforts since their H-4 spouses are unable to work. This rule is to remove a disincentive for H-1B workers from pursuing LPR status. DHS claims that not only will the extension of EAD to H-4 spouses help individuals on the path toward LPR status and integrating in the U.S., those who choose to participate in the labor market will benefit financially as well as contribute to it.

Furthermore, DHS has maintained that they support the goal of attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses that result from H-1B nonimmigrants who choose not to pursue lawful permanent resident status. This goal arises out of the recognition of other nations’ more appealing and competitive policies for attracting and retaining highly skilled foreign workers.

Without getting too bogged down by the complex details involving the Final Rule and its implementation, the main takeaway right now is that USCIS is now accepting EAD applications from H-4 spouses, many of whom have waited several years to be able to work in the United States.

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