Regulation Allowing Spouses of H-1B Foreign Nationals to Apply for an Employment Authorization Document Published in the Federal Register

February 25, 2015

Beginning May 26, 2015, certain spouses of H-1B foreign nationals will be permitted to apply for United States work authorization.  In order for the spouse of an H-1B foreign national to qualify for United States work authorization, the H-1B foreign national must have a Form I-140, Immigrant Petition for Alien Worker approved on his/her behalf or be in the United States in valid H-1B nonimmigrant status pursuant to a post-sixth extension authorized by Section 106(a) of the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21").  

 

The spouse of an H-1B foreign national must be in the United States in valid H-4 dependent status and must submit a Form I-765 Application for Employment Authorization to United States Citizenship and Immigration Services (USCIS).  The Form I-765 application should include any relevant government filing fees, two color passport-style photographs conforming to USCIS specifications, and evidence of the following: a qualifying spousal relationship between the H-1B foreign national and the H-4 dependent spouse (e.g., civil marriage certificate); that the H-1B foreign national and H-4 dependent spouse are both maintaining valid nonimmigrant status; and that the H-1B foreign national has a Form I-140 approved on his/her behalf or has received a post-sixth year extension pursuant to Section 106(a) of AC21.  A qualifying H-4 dependent spouse must wait to receive a valid Employment Authorization Document (EAD card) from USCIS before he/she will be eligible to commence employment in the United States.  USCIS is expected to issue EAD cards to H-4 dependent spouses valid for periods of up to three years.  However, H-4 dependent spouses should be prepared for the likelihood that EAD cards will only be issued through the validity of the H-1B foreign national's or the H-4 dependent spouse's period of authorized stay, depending on which is shorter.  

 

Given that only certain spouses of H-1B foreign nationals will qualify for United States work authorization, employers should anticipate that H-1B foreign nationals may desire to commence the permanent residence process much earlier in their period of H-1B nonimmigrant status in order to secure a spouse's eligibility to apply for United States work authorization.  

 

A copy of the final regulation published in the Federal Register is available here.

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