As we previously announced, US Citizenship & Immigration Services (USCIS) will start accepting applications for Employment Authorization Documents (EADs), also commonly known as work cards, for spouses of certain H-1B visa holders on May 26, 2015. In preparation for the massive influx of applications, on May 20, USCIS announced some basic guidelines for these applications.
By way of background, spouses of H-1B visa holders are eligible for H-4 visas as dependents of the H-1B. H-4s are valid for only as long as the principal H-1B is valid and until now, H-4 holders have not been allowed to work. As part of the executive actions announced in November last year, it was ordered that spouses of certain H-1B visa holders be granted work authorization. These spouses have to apply for work authorization using Form I-765 and once they receive their work card, they can begin working.
Based on the recently published guidelines, we have outlined the key points in a helpful question and answer format.
Who is eligible?
In order to be eligible to apply for a work authorization card, the foreign national must be a dependent spouse of an H-1B visa holder and must be in H-4 status. The principal H-1B visa holder must be the beneficiary of an I-140, which has not been revoked or withdrawn. Alternatively, the principal H-1B must be in the process of pursuing permanent residence status (through a labor certification or the filing of an I-140 both of which must have been pending for more than 365 days) and be in the US beyond the six-year H-1B limit pursuant to the American Competiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).
Can the dependent spouse file an application for a work card even if not physically in the US?
No. In order to make the application for a work card, H-1B dependent spouses must be in the United States in H-4 status. Dependent spouses outside the United States, by definition, will not have a status in the US and, therefore, will not be in H-4 status. Once dependent spouses return to the US and are admitted in H-4 status, they may apply for the work card. Dependent spouses in the US in a status other than H-4 can file a change of status to H-4. In this scenario, dependent spouses can file the EAD application at the same time as the change of status. In other words, the EAD application can be filed concurrently with the change of status application. In the event of a concurrently filed EAD and change of status application, it should be noted that the ninety-day clock for the processing of the EAD application will not start until the change of status to H-4 has been granted.
What evidence does an applicant for work authorization under H-4 status need to provide?
USCIS has created a helpful chart which details what exactly must be provided to demonstrate eligibility for the work card in the recently published guidance. Generally though, applicants for work authorization will need to provide evidence to show that:
- They are maintaining H-4 status;
- They are married to an H-1B visa holder;
- The H-1B visa holder is maintaining status; and
- The H-1B is the beneficiary of an approved I-140 or is pursuing a Green Card pursuant to AC21.
In addition, applicants have to pay the government filing fee of $380.
How long will it take for the EAD application to be processed?
These EAD applications, like all EAD applications, will take up to ninety days (or three months) to process. If the application is filed concurrently with a change of status to H-4 status, the ninety-day clock will not start until the application for H-4 status is approved. If a request for evidence is issued in connection with the application for work authorization, the ninety-day clock will be stopped until a response is received.
Can the applicant for an EAD travel internationally while the application is pending?
EAD applicants may travel internationally providing they are maintaining valid H-4 status and meet all the criteria for readmission after international travel. Importantly, if dependent spouses file the work card application concurrently with a change of status application, traveling outside the US will result in the change of status request being abandoned, and therefore when these dependent spouses return to the US they will likely no longer be eligible for the work card. An unanswered question: what if dependent spouses obtain an H-4 visa while traveling and re-enter the US in H-4 status. Would the EAD application be processed despite the abandonment of the change of status application, given that the dependent spouses are now in H-4 status? I am sure the answer to this will be forthcoming in the next few months.
With whom is the H-4 dependent spouse authorized to work?
Dependent spouses who obtain H-4 status and subsequently work authorization may work for any company and are not limited to a specific employer or a specific field. The EAD permits H-4 spouses to be self-employed and also permits them to start a business that employs others.
When can the H-4 dependent spouse start working?
H-4 dependent spouses must wait until the EAD card is approved before they can commence working. When the application for the work card is approved, it will not be backdated to the filing date.
Can the H-4 dependent spouse use the approved EAD for travel?
No, this EAD even when approved is not a valid entry document for international travel. H-4 dependents must travel with a valid international passport stamped with a valid H-4 visa. If for any reason dependent spouses reenter the country in any status other than H-4 status, their work card, even though approved, ceases to be valid. In other words the work authorization is only valid as long as the dependent beneficiary maintains H-4 status.
Can children of H-1B visa holders work under H-4 status?
At this point, no. The new rules only apply to spouses in H-4 status.
How long is the new EAD card valid?
Once the EAD is approved, the validity of the card will likely be the same duration as the validity of the H-4 status, which in turn corresponds to the validity of the principal H-1B. If the H-1B holder falls out of status, so too will the H-4, thereby invalidating the EAD.
While it is very exciting that certain spouses of H-1B visa holders will be able to work and the guidance issued does answer many questions, the complexity of this area of the law, particularly the interaction of AC21 and H-1B regulations makes these applications trickier than they appear. Proceed with caution and consult a lawyer if in doubt. For those who can finally obtain employment authorization, time to update that resume and practice answering those fun interview questions!