Immigration Report -- May 21, 2015

May 21, 2015 | H-1B, H-1B EAD

USCIS Publishes Filing Guidance for Certain H-4 Dependent Spouses

USCIS has 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. The information can be viewed on the USCIS website as follows:

  • H-4 Dependent Spouses Web page can be viewed here
  • Frequently Asked Questions can be viewed here

Please note that applicants may not apply for employment authorization under this rule until May 26, 2015. Until the H-4 rule takes effect on May 26, 2015, USCIS will not accept any Form I-765, Application for Employment Authorization requesting employment authorization based on H-4 status. If an applicant submits a Form I-765 before May 26, 2015, USCIS will reject the application and return it and the filing fee. The application would then need to be resubmitted on or after May 26, 2015.

BACKGROUND and ELIGIBILITY:

The Employment Authorization for Certain H-4 Dependent Spouses final rule (H-4 rule), effective on May 26, 2015, seeks to support the goals of attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses resulting from H-1B non-immigrants who choose not to remain in the United States and pursue legal permanent resident status. Although USCIS published the H-4 notice of proposed rule-making in May 2014, finalizing it was part of the executive actions on immigration that President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of the initiatives to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

Beginning May 26, 2015, certain H-4 dependent spouses of H-1B non-immigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B non-immigrant 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 non-immigrant:

  • 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 non-immigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

VALIDITY OF EMPLOYMENT AUTHORIZATION:

H-4 EAD Applicants will not be eligible to work until USCIS approves the Form I-765 application. Once the employment authorization is approved, the expiration date on the EAD will likely be the same date as the expiration date on the most recent Form I-94 indicating H-4 nonimmigrant status. H-4 EAD Applicants are only authorized to work through the expiration date on the EAD. If the H-4 EAD Applicant will still be eligible for work authorization after that date, the H-4 EAD Applicant should file for a renewal EAD by submitting another Form I-765. An H-4 EAD Applicant cannot file for a renewal EAD more than 120 days before the original EAD expires.

 


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