The Much Anticipated H-4 EAD Unveiled

The Department of Homeland Security has finally announced that effective May 26, 2015, spouses of H-1B non-immigrants on H-4 visas can apply for employment eligibility. The news is welcome relief for thousands of spouses on H-4 visas who have been lawfully present in the U.S. but unable to work legally.

The rule change would allow H-4 spouses to apply for employment authorization if their H-1B spouse is a beneficiary of an approved I-140 immigrant petition or, if the H-1B spouse has been granted an extension of stay based upon the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), beyond the six years initially authorized by the H-1B visa.

The final rule (RIN 1615-AB92) contains only minor, clarifying changes from a proposed rule released in May 2014 (8 WIR 317, 5/12/14). Those changes include clarification that evidence submitted with an I-765 application for an employment authorization document (EAD) must include proof that the applicant is currently in H-4 status and his or her spouse is currently in H-1B status.

The new rule will allow the spouses of many H-1B workers to obtain work authorization, build sustainable lives in the U.S., integrate and contribute to the economy. DHS estimates that about 179,600 individuals will be immediately eligible to work, removing hardships that have caused some H-1B holders to leave the U.S. An additional 55,000 eligible would be eligible from the next fiscal year.

The DHS also is allowing concurrent filing of the I-765, Application for Employment Authorization, with an I-539 application to extend/change nonimmigrant status.

While this change is a welcome step in the right direction, it is exceedingly narrow and only provides work authorization to a limited number of H-4 visa holders. As part of future administrative relief, DHS should consider extending work authorization benefits to all H-4 visa holders, incident to status. This includes the children of H-1B workers, who often age out of eligibility for lawful permanent residence due to the significant employment-visa backlog, and are unable to benefit from programs such as Deferred Action for Childhood Arrivals (DACA) due to their lawful status as of June 15, 2012.