On May 26, 2015, USCIS announced that, the Department of Homeland Security (DHS) would begin accepting applications for employment authorization from certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. Those eligible include H-4 dependent spouses of principal H-1B nonimmigrants who:

      Here are answers to some frequently asked questions about how to apply employment authorization for certain H-4 dependents spouses：

 

 

a. An H-1B extension of stay petition, an H-4 extension of stay application, and an application for employment authorization?

     

    Yes. You may file your Form I-765, Application for Employment Authorization together with your Form I-539, Application to Extend/Change Nonimmigrant Status and the Form I-129, Petition for Nonimmigrant Worker filed on behalf of your H-1B spouse. For extensions of nonimmigrant status, the Form I-129 for your H-1B spouse can be filed no more than six months before the date that the employer needs your spouse to work.

 

b. A new H-1B petition, a new H-4 change of status application, and an application for employment authorization?

     

    Yes, but this scenario is possible only if your H-1B spouse has an approved Form I-140 or is requesting an extension of stay under sections 106(a) and (b) of AC21. Your spouse’s employer can file Form I-129 for your H-1B spouse no more than six months before the date the employer needs your spouse to work.

 

      Please note that under this scenario, we cannot adjudicate your Form I-765 until we make a determination about both your H-1B spouse’s eligibility for H-1B status under sections 106(a) and (b) of AC21 and your eligibility for H-4 nonimmigrant status. 

      In either of the above scenarios, USCIS will not begin the 90-day interim EAD clock until we make a decision on your spouse’s H-1B status and your H-4 status. 

 

 

      If you are applying for employment authorization based on your H-4 nonimmigrant status, you must file a paper Form I-765 application. We will not accept electronic Form I-765 applications.  

 

 

      When applying for employment authorization based on your H-4 nonimmigrant status, submit the following with your application to demonstrate eligibility:

• Evidence of your H-4 nonimmigrant status;

• Evidence of your qualifying spousal relationship with the H-1B principal nonimmigrant (such as a copy of your marriage certificate);

• Evidence of your spouse’s H-1B nonimmigrant status

And,

• If you are applying for employment authorization based on your spouse’s grant of H-1B status under AC21 §§ 106(a) and (b), submit evidence to show  that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his or her six-year limitation of stay as an H-1B nonimmigrant. 

• If you are applying for employment authorization based on your spouse being a beneficiary of an approved Form I-140, include evidence that the Form I-140 filed on your H-1B spouse’s behalf has been approved.