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New Rule: Certain H-4 Spouses Can Apply for Work Authorization Soon!
February 24, 2015
For the first time ever, on May 26, 2015, the U.S. government will begin allowing certain H-4 spouses to apply for work authorization. The most common work visa is the H-1B work visa, and spouses of H-1B holders are accorded H-4 status. H-4 spouses have never been able to work. But, on May 26, 2015, implementing President Obama’s Executive Action taken in November, 2014, certain H-4 spouses can begin applying for Employment Authorization Documents (EAD cards). EAD cards allow individuals to work in any capacity for any employer, including self-employment. This can assist greatly in bolstering foreign entrepreneurship in the U.S. In addition, it is an effort to realize that many skilled foreign workers have been forced to leave the U.S. because they need the second income from their spouses. Thus, with this new rule, it is hoped that the U.S. will be able to retain and attract greater numbers of skilled and professional foreign workers.
This new rule only applies to certain H-4 spouses, generally only those whose H-1B spouse: (1) is the beneficiary of an approved I-140 application, or (2) is the beneficiary of a PERM application or I-140 petition that was filed at least 365 days before the expiration of his/her sixth year of H-1B status. The PERM and I-140 applications are parts of an employment-based green card process. This new rule recognizes how long the green card process can take (sometimes over 10 years), and attempts to help alleviate the financial hardships caused to one-income families for that extended period of time.
Eligible H-4 spouses can start applying for EAD’s on May 26, 2015, and can file their EAD applications concurrently with their H-4 applications. However, where the EAD & H-4 applications are filed together, the EAD applications will only be processed once the U.S. Citizenship and Immigration Service has made a determination on the H-4 application. From that point, the EAD application should take 90 days to be processed. The EAD cards will generally be issued with validity dates that match the H-4 validity dates. Because the EAD card is linked to the H-4 status, and the H-4 status is linked to the spouse’s H-1B status, if the H-1B or H-4 spouse falls out of status (for example, if the H-1B spouse terminates employment), then the EAD card is no longer valid.
The issuance of the EAD card will have attendant benefits as well. For example, in many states, H-4 spouses have been unable to get drivers’ licenses, and the EAD card will allow them to finally obtain drivers’ licenses. It will also assist H-4 spouses in obtaining social security numbers, which has many benefits in itself.
The U.S. estimates that 179,400 H-4 spouses will be eligible for these EAD cards in the first year, and 55,000 more each year thereafter.
This is a significant change and benefit to employers and their employees, and to future entrepreneurs. Employers should share the information with their H-1B employees
If you have any questions or need additional information regarding this, please contact Berin S. Romagnolo in our Immigration Group.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2015 Posternak Blankstein & Lund LLP. All rights reserved.