New York Lawyer's Legal Updates

Employment Authorization for Spouses of H1B Holders

Author: Employment Immigration attorney Alena Shautsova

On May 26, 2015 USCIS started to accept employment authorization applications, form I 765, by certain spouses of H1B visa holders. Traditionally, spouses of H1B visa holders, H4 dependents, were not eligible for an employment authorization. As one of the measures by the President aimed to improve the U.S. Immigration system, USCIS for the first time allowed certain spouses of H1B holders to file for an employment authorization. To qualify, an H4 status holder has to have a spouse who:

  • Has an approved I-140 filed on his/her behalf;
  • Received an approval of an application to extend the 6 years limit on H1B pursuant to American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).

USCIS created a new employment eligibility category for these H4 dependents, C 26. USCIS also updated its I-765 form to be used by the new applicants. If noth of the spouses are on H1B, one can file to change status to H4 now and accept any employment: it does not have to be tied to a specific employer (unlike employment for persons in H1B status). H4 holders of the EAD may also open their own business.

The new applicants must be in the U.S. to file their applications, and may refile if the eligibility still exists.

The EAD issued should be valid for as long as the H4 status is valid. In addition, persons whose H4 status is expiring, may file for its extension and an EAD 6 months prior to the status’ expiration.

Note: EAD will not be valid for travels abroad. It can be used, however, as a form of identification. Importantly, if application for EAD was filed concurrently with an application to change/extend status, travel abroad during the pendency of such applications will terminate them, hence, terminating application for the EAD as well.

02 June 2015
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