USCIS on May 21, 2015, published information to help eligible H-4 dependent spouses who want to apply for employment authorization under the Employment Authorization for Certain H-4 Dependent Spouses final rule.

Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident (LPR) status. Specifically, H-4 dependent spouses may apply for employment authorization if the H-1B nonimmigrant:

  • Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Has 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 (AC21). AC21 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.

Do NOT submit an application for employment authorization (Form I-765) before May 26, 2015. USCIS will not accept a Form I-765 requesting employment authorization based on H-4 status until the H-4 rule takes effect on May 26, 2015. If you submit a Form I-765 requesting employment authorization on this basis before May 26, 2015, USCIS will reject and return your application with the filing fee. You would then need to re-submit the application on or after May 26, 2015.

In response to the stakeholder teleconference, USCIS posted the following Frequently Asked Questions that can help in clarifying queries of many eligible applicants.

Frequently Asked Questions

Determining If You May Apply for Employment Authorization

1. As an H-4 nonimmigrant, would my employment authorization be limited to just my H-1B spouse’s time under AC21? For example, if my H-1B spouse’s petition is approved for the remaining time left in the 6-year period of admission plus the one year under AC21 §§ 106(a) and (b), and my H-4 status is granted the same period of time, how long will my employment authorization be valid for?

Your employment authorization expiration date generally will match your H-4 nonimmigrant status expiration date. USCIS may grant employment authorization for the maximum time allowed even if the AC21 §§ 106(a) and (b) portion of your H-1B spouse’s extension is only for part of the full validity period. Under this scenario, your H-1B spouse’s extension has been granted under AC21 §§ 106(a) and (b), so you would be eligible for employment authorization for as long as your H-4 status is valid.

2. Is this a one-time opportunity?

No, this is not a one-time opportunity. If you are a H-4 nonimmigrant who obtains employment authorization under 8 CFR 274a.12(c)(26), you may file to renew your employment authorization and receive a new EAD as long as you remain eligible for employment authorization as described in 8 CFR 214.2(h)(9)(iv).

3. Do I need to be in the United States to apply for employment authorization based on my H-4 status?

Yes, you must be in the United States to apply for employment authorization. You must be in H-4 status to be eligible for employment authorization, and an individual outside of the United States cannot be in H-4 status.

4. Am I eligible for employment authorization if USCIS revoked my H-1B spouse’s approved Form I-140 petition? 

In order to qualify for employment au