Employment Authorization for Certain H-4 Dependent Spouses FAQ (1)
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.
This article is for background purposes only and is not intended as legal advice or legal document. Please contact a professional immigration attorney for legal consultation and service.