News Release from Jewell & Associates, PC In a final regulation dated February 24, 2015, USCIS announced that, starting Tuesday, May 26, 2015, it will accept applications for employment authorization from certain H-4 spouses of H-1B nonimmigrants in the employment-based lawful permanent residence (green card) process. An H-4 spouse of an H-1B nonimmigrant will be eligible to apply for an Employment Authorization Document (EAD) if the H-1B nonimmigrant:
- Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted an H-1B extension beyond the six-year limit under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21), as amended. Sections 106(a) and (b) of AC21 refer to H-1B extensions based on the filing of a PERM or I-140 at least one year before the end of the H-1B nonimmigrant’s six-year limit, where no final decision to deny the PERM, I-140, or permanent residence has been made.
USCIS will begin accepting applications on May 26, 2015. Under the rule, eligible H-4 spouses seeking employment authorization will be required to file Form I-765, Application for Employment Authorization, with the required $380 fee and the documents establishing their eligibility. USCIS usually adjudicates Form I-765 within 90 days; if employment authorization is approved, the applicant will receive an EAD. Once the H-4 spouse receives an EAD, he or she may begin working in the United States.
Applications will not be accepted by USCIS before Tuesday, May 26, 2015. Prospective applicants for H-4 employment authorization are cautioned by USCIS to avoid anyone who offers to assist in submitting an application before the effective date.
Finally, it appears that USCIS may require applicants to use a new version of Form I-765 and to follow new instructions that will not be made available until that date. Specifically, in a posting on USCIS’s website on February 24, 2015, USCIS stated, “The Office of Management and Budget has reviewed the USCIS request for changes to the Form I-765 and its instructions… resulting from the H-4 rule. We will update this Web page with guidance on filing Form I-765 on May 26, 2015, the date the H-4 rule becomes effective.”
USCIS’s full postings can be found here and here. A pre-publication PDF of USCIS’s final rule is available here.
By Phyllis Jewell. © Jewell & Associates, PC 2015