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DHS Extends Eligibility for Employment

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence.

Our work defines us and gives meaning to our lives. Some of us believe we are answering a calling that is greater than ourselves. Work is something most adults expect to do because it is a part of the accepted definition of being an adult. H-4 spouses have been denied this badge of honor - this symbol of worth - until now. We at ATA (The American Telugu Association, www.ataworld.org) rejoice in this victory for eligible H1B families. Please accept our hearty congratulations, and wishes for a happy and financially strong future.

Release Date: February 24, 2015 (information source: http://www.uscis.gov/) WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization documents (EADs). The release of the final rule provides some clarity regarding a number of lingering questions, such as the validity period of the EADs that will be issued to H-4 spouses.

Two Categories of H-4 Spouses Eligible for EADs
It is important to understand that not all H-4 dependents will be eligible to apply for EADs. Rather, for an H-4 spouse to qualify, the principal H1B worker must either (1) be the beneficiary of an approved I-140, or (2) have extended H1B status beyond six years based on the American Competitiveness in the Twenty-First Century Act (AC21). The EAD provides unrestricted employment authorization. It can be used to work full time or part time for any employer in any field or position. Children who hold H-4 status, even those who are old enough to work, are not eligible to apply for employment authorization under the new rule.

Eligibility Based on I-140 Approval
The first category of H-4s who will be eligible to request EADs is fairly straightforward. All that is required is that the H1B spouse be the beneficiary of an approved immigrant petition (I-140 form). There are no other requirements or restrictions. The I-140 petition approved for the H1B spouse can be in any employment-based category for which the I-140 is utilized. This includes employment-based, first preference (EB1), second preference (EB2), and third preference (EB3) cases. With an approved I-140, it does not matter how much time the H1B worker or H-4 spouse have spent in the United States. It is also not necessary for the H1B spouse to work for the employer that filed the I-140 petition. The I-140 does not have to have been approved for any minimum length of time.

Eligibility Based on H1B Spouse's Extension Beyond Six Years
Under the second category of EAD eligibility, the H-4 spouse is only eligible to apply for an EAD under the new rule if the principal spouse has obtained an H1B extension beyond the six-year limit pursuant to specific provisions of AC21. The provisions in question are contained in sections 106(a) and (b) of AC21. These sections of the law allow an H1B nonimmigrant to extend status beyond the six-year standard limit in one-year increments.

Eligibility for these one-year extensions is based on the H1B spouse being the beneficiary of either a PERM labor certification (PERM LC) application or an I-140 immigrant petition that was filed at least 365 days prior to the end of the sixth year of H1B status. It is not necessary for the PERM LC or the I-140 to have been approved for the H-4 spouse to be eligible under this rule. However, it is necessary for either the PERM LC or I-140 to still be "alive," meaning not having received a final denial or revocation decision.

Additional Details:
H-4 dependent spouses will have to file USCIS form I-765 with a filing fee of $380.00.  The USCIS will begin receiving the applications from May 26, 2015 onwards. Any application received prior to May 26, 2015 will be rejected.

Please contact ATA Immigration and Government affairs team for any additional details.

Murali Bommanaveni, Phone:248-390-3678 and eMail:mbommana@gmail.com
Narsimha Doma, Phone:301-529-0002 and eMail:nrdoma@gmail.com