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Employment Authorization for Certain H-4 Dependent Spouses

U.S. businesses use the H-1B visa to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming. H-1B workers’ spouses and children are admitted to the U.S. with H-4 visas. Normally, an H-1B can work in the U.S. for a maximum of 6 years, although certain exceptions apply.

Under prior regulations, USCIS did not extend employment authorization to H-4 spouses. Beginning May 26, 2015, the H-4 spouse may file a Form I-765, Application for Employment Authorization, with the filing fee of $380 and supporting documents.

Which H-4 Spouses Are Eligible for Employment Authorization?

An H–4 spouse of an H–1B worker may be eligible for an EAD only if the H–1B worker is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or the H–1B worker has been granted an extension of H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Such an extension can be granted if–prior to reaching the end of the 6th year in H-1B status–365 days have passed since the filing of a labor certification application or of a Form I-140 but the worker is still waiting for permanent residence (i.e., the labor certification application has not been withdrawn, denied, or revoked).

What Is the Procedure to Apply for an EAD?

You must actually be in the U.S. in H-4 status to be eligible to file. The application may be filed together with a Form I-539, Application to Extend/Change Nonimmigrant Status, as well as the H-1B worker’s Form I-129, Petition for Nonimmigrant Worker. It may be filed up to six months in advance of the requested start date.

What Supporting Documents Are Required?

File the following supporting documents along with the Form I-765 and filing fee:1. 1. Evidence the H-1B worker is seeking LPR status. Specifically: You may show this by submitting a copy of the H-1B nonimmigrant’s Form I-797 approval notice for Form I-140; OR Evidence that the H-1B nonimmigrant has received an extension of stay under AC21 sections 106(a) and (b). You may show this by submitting: (a) a copy of the H-1B nonimmigrant’s passports, prior Forms I-94 (Arrival/Departure Record), and current and prior Forms I-797 for Form I-129, Petition for a Nonimmigrant Worker; and (b) Evidence to establish one of the following bases for the H-1B nonimmigrant’s extension of stay: either (a) Based on Filing of a Permanent Labor Certification Application. Submit evidence that the H-1B nonimmigrant is the beneficiary of a Permanent Labor Certification Application that was filed at least 365 days prior to the expiration of the six-year limitation of stay. You may show this by submitting a copy of a print out from the Department of Labor’s (DOL’s) website or other correspondence from DOL showing the status of the H-1B nonimmigrant’s Permanent Labor Certification Application. If DOL certified the Permanent Labor Certification, also submit a copy of Form I-797 Notice of Receipt for Form I-140 establishing that the Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification; or (b) Based on a Pending Form I-140. If the preference category sought for the H-1B nonimmigrant does not require a Permanent Labor Certification Application with DOL, submit evidence that the H-1B nonimmigrant’s Form I-140 was filed at least 365 days prior to the expiration of the six-year limitation of stay and remains pending. You may show this by submitting a copy of the Form I-797 Notice of Receipt for Form I-140.

Evidence the applicant is currently in H-4 status (e.g., Form I-94 or Form I-797 granting an extension of or change to H-4 status) or an accompanying Form I-539 with $290 filing fee applying for change to H-4 status.

Proof of marriage to the H-1B worker (e.g., marriage certificate with certified English translation, if applicable)

A government-issued ID with photo (e.g., last EAD or biometric page from your passport)

Two identical two-by-two-inch passport-style color photographs of yourself.

In certain cases, it may also be wise to submit: evidence of the validity of the marriage (e.g., evidence of joint ownership of assets, joint filing of tax returns, etc.) because if the adjudicating officer suspects marriage fraud, the case may be referred to a local fraud unit for further investigation.

Evidence the H-1B worker is maintaining lawful nonimmigrant status; for example, passport, Form I-94, most recent W-2 and paystub.

How Long Will the EAD Be Valid?

USCIS generally will issue the employment authorization document (EAD) valid for the same period as the spouse’s H-4 status, which may be as long as three years, but must not exceed the H-1B worker’s approved period of stay.

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