FAQs: Employment Authorization for Certain H-4 Dependent Spouses - Part 1

From USCIS: USCIS recently hosted a teleconference about new regulatory changes, effective May 26, 2015, that extend employment authorization to certain H-4 dependent spouses of certain H-1B nonimmigrants who have already started the process of seeking employment-based lawful permanent resident status. Those eligible include H-4 dependent spouses of principal H-1B nonimmigrants who:

• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted H-1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). AC21 permits H-1B workers seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.

You can find these regulatory changes in sections 214.2(h)(9)(iv), 274a.12(c)(26), and 274a.13 of title 8 of the Code of Federal Regulations (8 CFR 214.2(h)(9)(iv), 8 CFR 274a.12(c)(26), and 8 CFR 274a.13).

Please note that you may not apply for employment authorization under these regulations until May 26, 2015. If granted employment authorization under these regulatory changes, H-4 dependent spouses will receive a Form I-766, Employment Authorization Document (EAD), as proof of that authorization.

We are posting these Frequently Asked Questions in response to this stakeholder teleconference.

Frequently Asked Questions

Determining If You May Apply for Employment Authorization

1. As an H-4 nonimmigrant, would my employment authorization be limited to just my H-1B spouse’s time under AC21? For example, if my H-1B spouse’s petition is approved for the remaining time left in the 6-year period of admission plus the one year under AC21 §§ 106(a) and (b), and my H-4 status is granted the same period of time, how long will my employment authorization be valid for?

      Your employment authorization expiration date generally will match your H-4 nonimmigrant status expiration date. USCIS may grant employment authorization for the maximum time allowed even if the AC21 §§ 106(a) and (b) portion of your H-1B spouse’s extension is only for part of the full validity period. Under this scenario, your H-1B spouse’s extension has been granted under AC21 §§ 106(a) and (b), so you would be eligible for employment authorization for as long as your H-4 status is valid.

2. Is this a one-time opportunity?

      No, this is not a one-time opportunity. If you are a H-4 nonimmigrant who obtains employment authorization under 8 CFR 274a.12(c)(26), you may file to renew your employment authorization and receive a new EAD as long as you remain eligible for employment authorization as described in 8 CFR 214.2(h)(9)(iv).

3. Do I need to be in the United States to apply for employment authorization based on my H-4 status?

      Yes, you must be in the United States to apply for employment authorization. You must be in H-4 status to be eligible for employment authorization, and an individual outside of the United States cannot be in H-4 status.

4. Am I eligible for employment authorization if USCIS revoked my H-1B spouse’s approved Form I-140 petition? 

      In order to qualify for employment authorization as an H-4 nonimmigrant, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140. If USCIS revokes the Form I-140 petition, your H-1B spouse is no longer the beneficiary of an approved Form I-140. Therefore, you would not qualify for employment authorization based on that eligibility criterion. You may still qualify for employment authorization if your H-1B spouse has received an extension of stay under sections 106(a) or (b) of AC21.

5. My H-1B spouse’s approved Form I-140 was filed by a previous employer. Am I eligible for employment authorization?

      For you to qualify for employment authorization based on your H-4 status, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140. USCIS does not require that the approved Form I-140 be filed by your spouse’s current employer or by the same employer who filed your H-1B spouse’s Form I-129, Petition for a Nonimmigrant Worker.

6. What happens to my employment authorization if USCIS revokes my H-1B spouse’s Form I-140?

      We have the discretion to revoke your employment authorization if your H-1B spouse no longer has an approved Form I-140 or is no longer eligible for H-1B status under sections 106(a) and (b) of AC21. Both you and your H-1B spouse must be maintaining your nonimmigrant status for you to be eligible for employment authorization under 8 CFR 274a.12(c)(26).

7. If I am granted H-4 employment authorization, can I work anywhere (including starting my own business)? 

      Yes. If you are granted employment authorization based on your H-4 status, your employment authorization is unrestricted. This means that your employment authorization is not limited to a specific employer. It also does not prohibit self-employment or starting a business.

8. Can I employ other people?

      As noted above, employment authorization based on H-4 status under 8 CFR 274a.12(c)(26) is unrestricted. Such employment authorization does not prohibit self-employment, including situations where the H-4 nonimmigrant hires individuals as employees of their business.