8 CFR Parts 214 and 274a
[CIS No. 2501–10; DHS Docket No. USCIS–2010–0017]
Employment Authorization for Certain H–4 Dependent Spouses
AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security.
ACTION: Final rule.
EFFECTIVE DATE – May 26, 2015
Summary of Rule -
This final rule extends eligibility for employment authorization to certain H–4 dependent spouses of H–1B non-immigrants who are seeking employment-based lawful permanent resident (“LPR”) status.
Conditions to get work authorization under new rule –
- H–1B non-immigrants must be the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I–140), or
- Have been granted H– 1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act
Revised 8 CFR 274a.12(c) lists H-4 dependent spouses described in revised 8 CFR 214.2(h)(9)(iv) as a new class of aliens eligible to request employment authorization from USCIS. Aliens within this class would only be authorized for employment following approval of their Application for Employment Authorization (Form I-765) by USCIS and receipt of an Employment Authorization Document (Form I-766) (“EAD”).
Evidences in support of application-
H-4 dependent spouse covered by this rule should include with his or her Application for Employment Authorization (Form I-765) evidence demonstrating that –
- The spousal relationship – Proof of Marriage
- He or she is currently in H-4 status and that the principal H-1B is the beneficiary of an approved Immigrant Petition for Alien Worker or has been provided H-1B
(Revision of form I765is in progress)
- If the H-4 dependent spouse cannot submit the primary evidence listed in the form instructions, he or she may submit secondary evidence, such as an attestation that lists information about the underlying Form I-129 or Form I-140 petition, so that an adjudicator may be able to match the Form I-765 application with the underlying petition(s).
- Such information may include the petition receipt number, the beneficiary’s name and/or the petitioner’s name.
- If secondary evidence does not exist or cannot be obtained, an applicant may demonstrate this and submit two or more sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances. This approach should address the situation where the H-4 dependent spouse is unable to access the immigration paperwork relating to the H-1B non-immigrant
- If an applicant prefers to obtain the primary evidence listed in the form instructions from
- USCIS for submission with the Form I-765, the applicant may make a request for documents maintained by USCIS by following established procedures for making such requests under the Freedom of Information Act (FOIA)
Employment Authorization Document (Form I-766) Validity Period –
- The EAD validity period should match the H-4 dependent spouse’s length of authorized admission. Thus, in issuing an EAD to an otherwise eligible H-4 dependent spouse, DHS generally will authorize a validity period that matches the H-4 spouse’s remaining authorized period of admission, which may be as long as three years in cases not involving DOD-related services.
EAD Renewal –
- DHS will permit those H-4 dependent spouses seeking to concurrently file their Form I-765 application with their Application to Extend/Change Non-immigrant Status (Form I-539), and if applicable their spouses’ Form I-129 petition, to file up to six months in advance of the requested start date.
- Please note, however, that USCIS will not adjudicate the Form I-765 application until a determination has been made on the underlying Form I-539 application and/or Form I-129 petition. The time at which an H-4 dependent spouse will be eligible to apply for an EAD renewal will vary, as it is dependent on actions taken by the H-1B non-immigrant, including actions to maintain and extend his or her H-1B status, as well as the H-4 dependent spouse’s status.
Concurrent Filings –
- DHS allows Form I-765 to be concurrently filed with Form I-539, but not with Form I-140.
- DHS has decided to permit H-4 dependent spouses to file Applications for Employment Authorization (Forms I-765) concurrently with certain related benefit requests: Applications to Extend/Change Non-immigrant Status (Forms I-539) and, if applicable, with Petitions for a Non-immigrant Worker (Form I-129).
- The 90-day clock described in 8 CFR 274a.13(d) would also not start until after a determination has been made on the underlying H-1B status, H-4 status, or both.
- DHS also notes that it cannot adjudicate a Form I-765 filed by an H-4 dependent spouse until the Department has made a determination regarding the H-1B nonimmigrant’s eligibility for H-1B status under sections 106(a) and (b) of AC21 or until a Form I-140 petition has been approved.
Pending Form I-140 immigrant petitions with new employer –
- Extension employment authorization to H-4 dependent spouses in cases where the H-1B non-immigrants have transferred their employment to a new employer and are in the process of obtaining approval of a new Form I-140 petition – DHS is not extending this rule on the basis of pending PERM applications or Form I-140 petitions.
Premium Processing –
- DHS has decided not to extend premium processing to Form I-765 applications filed by H-4 dependent spouses in conjunction with this rulemaking.
Automatic Extensions of Work Authorization –
- There will be no automatic extension of work authorization.
- To avoid any potential gaps in employment authorization when seeking an extension of employment authorization, DHS recommends that the H-4 dependent spouse timely file all necessary applications. DHS’s policy to permit concurrent filing of Forms I-539, I-129, and I-765 should also help H-4 dependent spouses avoid gaps in employment authorization, as these forms may be filed concurrently up to six months in advance of date of need.
Filing Fees –
The current filing fee for Form I-765 is $380.
- H-4 dependent spouses who decide to file Form I-765 applications will face an estimated opportunity cost of time of $36.18 per applicant. Combining the opportunity costs with the fee and estimated passport-style photo costs, the total cost per application will be $436.18.
- DHS declines to establish a general fee waiver for the Form I-765 filed by eligible H-4 dependent spouses under this rule.
Other Relevant Points –
- DHS is clarifying that H-4 dependent spouses are not required to establish economic need for employment authorization. H-4 dependent spouses are not required to submit Form I-765WS with their Application for Employment Authorization
- DHS notes that eligibility for employment authorization for H-4 dependent spouses will not depend in any way on their professional or educational qualifications or their resumes. It will be up to potential employers to verify the qualifications of H-4 dependent spouses they may be seeking to hire DHS has not extended the expansion of employment authorization beyond the class of H-4 dependent spouses described in the proposed rule.
- H-4 dependent’s status is tied to the H-1B non-immigrant’s status. Thus, if the H-1B non-immigrant fails to maintain status, the H-4 dependent spouse also fails to maintain status and would therefore no longer be eligible for employment authorization. Under current regulations, DHS may seek to revoke employment authorization if, prior to the expiration date of such authorization, any condition upon which it was granted has not been met or no longer exists.
- Unlike other noncitizens that are employment authorized incident to status, H-4 dependent spouses will not be eligible for employment authorization based solely on their immigration status. Rather, H-4 dependent spouses must meet certain additional conditions before they can be granted employment authorization, and current USCIS systems cannot automatically and independently determine whether such conditions have been met
- DHS declines to expand eligibility for employment authorization to H-4 dependent minor children.
- DHS declines to extend eligibility for employment authorization to H1B holders. This rule is not a substitute for the H-1B program and is not intended to circumvent the H-1B lottery.
- DHS declines to expand eligibility for employment authorization in this rule to the dependents of principals with other non-immigrant classifications such as O visa.
Amended Rules –
8CFR Part 214 –
§ 214.2 Special requirements for admission, extension, and maintenance of status.
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(h) * * *
(9) * * *
(iv) H-4 dependents. The spouse and children of an H non-immigrant, if they are accompanying or following to join such H non-immigrant in the United States, may be admitted, if otherwise admissible, as H-4 non-immigrants for the same period of admission or extension as the principal spouse or parent. H-4 non-immigrant status does not confer eligibility for employment authorization incident to status. An H-4 non-immigrant spouse of an H-1B non-immigrant may be eligible for employment authorization only if the H-1B non-immigrant is the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or the H-1B non-immigrant’s period of stay in H-1B status is authorized in the United States under sections 106(a) and (b) of AC21, as amended by the 21st Century Department of Justice Appropriations Authorization Act.
To request employment authorization, an eligible H-4 non-immigrant spouse must file an Application for Employment Authorization, or a successor form, in accordance with 8 CFR 274a.13 and the form instructions.
If such Application for Employment Authorization is filed concurrently with another related benefit request(s), in accordance with and as permitted by form instructions, the 90-day period described in 8 CFR 274.13(d) will commence on the latest date that a concurrently filed related benefit request is approved. An Application for Employment Authorization must be accompanied by documentary evidence establishing eligibility, including evidence of the spousal relationship and that the principal H-1B is the beneficiary of an approved Immigrant Petition for Alien Worker or has been provided H-1B status under sections 106(a) and (b) of AC21, as amended by the 21st Century Department of Justice Appropriations Authorization Act, the H-1B beneficiary is currently in H-1B status, and the H-4 non-immigrant spouse is currently in H-4 status.
8CFR Part 274(a)
§ 274a.12 Classes of aliens authorized to accept employment.
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(c) * * *
(26) An H-4 non-immigrant spouse of an H-1B non-immigrant described as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv).
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§ 274a.13 Application for employment authorization.
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(d) Interim employment authorization- USCIS will adjudicate the application within 90 days from the date of receipt of the application, except as described in 8 CFR 214.2(h)(9)(iv), and except in the case of an initial application for employment authorization under 8 CFR 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and 8 CFR 74a.12(c)(9) in so far as it is governed by 8 CFR 245.13(j) and 245.15(n).
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