» Immigration Law Updates

The government clarifies how to apply for H-4 EAD work authorization starting May 26, 2015

May 20, 2015 | Written by Laura J. Mazel

The government today published long awaited FAQs and instructions.

Sum up of key points:

• Limited eligibility. There are only two types of H-4 spouses eligible for work authorization:

1. Where the primary H-1B worker spouse is the beneficiary of an approved I-140 petition; or
2. Where the primary H-1B worker spouse has obtained a 7^th year or more H-1B visa extension as permitted under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act, which allows extensions beyond the normal 6 year maximum because an employer timely filed an I-140 petition by the employee’s 5^th year anniversary in H-1B status or a PERM labor certification application and the PERM was pending for at least 365 days.

• The government will accept H-4 EAD applications starting May 26.  Applications received beforehand will be rejected.
• Applicants should use the government’s current I-765 application. E-filing is not available at this time. 
• Applicants must be physically present in the U.S. to apply.   Applicants may travel internationally while the H-4EAD application is pending as long as they are in valid H-4 status.
• It is possible to submit an H-4 change of status or extension application (including with an underlying H-1B extension) package along with the application for work authorization.  Note that the government will not begin adjudication of the EAD application until the H-4 has been approved and that it will not backdate the approval of the EAD to match the date of the H-4 approval.
• I-140 must not be withdrawn and H-1B Spouse must maintain H-1B status.  The government in its discretion may later revoke the EAD if the I-140 is withdrawn or the primary H-1B spouse is no longer in H-1B status.
• Original EADs are required to work. Employers may not complete I-9 employment verification forms without viewing original EAD cards if that is the basis of work authorization.  The government’s website screen shot of an approved EAD application will be insufficient.  EADs currently take 70-90 days to process. Be prepared for delays, however, given the anticipated high volume of applications.
• Further analysis is available.  For further background on suggested supporting documentation in the absence of detailed government FAQ’s published today, see our firm’s earlier analysis and guidance.
• Anticipate employee and candidate questions on timing of green card sponsorship.  Employers may expect interest from certain employees to begin the green card process earlier, as well as to file I-140 visa petitions by premium processing.
• Other foreign nationals who may ultimately benefit from the rule. 
  • Fiscal Year H-1B “lottery losers,” or H-1B employees running out of H-1B work authorization may benefit from the final rule,  provided their spouses are sufficiently far enough along in the green card process.
  • F-1 or J-1 holders whose H-1B spouses are sufficiently far enough along in the green card process may want to consider obtaining H-4 visas, and then, eligibility, for work authorization. 

We will continue working with our clients and their eligible employees on the H-4 EAD work authorization process.