Accompanying spouses of H-1B visa holders are generally not eligible for obtaining work authorization. But in 2015, DHS created a regulatory carve-out for H-4 spouses to be eligible for an EAD in cases of special groups of H-1B visa holders who are working in the US for lengthy periods while going through the immigrant visa process.
It is important to note that the ability of an H-4 spouse visa holder to apply for an receive an employment authorization document (EAD) is determined by whether the H-1B principal holder has a green card petition filed on their behalf, and in what stage it is.
- H-4 EAD eligibility depends on the H-1B principal having an I-140, PERM, or I-140 pending 365+ days with an AC21 extension beyond six years.
- An approved I-140 immediately makes an H-4 spouse eligible for an EAD, even within the H-1B holder’s initial six-year period.
- AC21 and the 2015 DHS regulation allow H-4 spouses to work to ease family hardship and support retention of needed skilled H-1B workers.
Three Ways an H-4 Spouse Can Qualify for an H-4 EAD
The H-4 spouse can apply for an EAD in one of the following three scenarios:
- An I-140 (immigrant worker) petition filed on behalf of the H-1B principal visa holder is approved.
- A PERM (labor certification) application on behalf of the H-1B principal has been filed and has been pending for at least 365 days, and the H-1B principal has obtained an extension of the H-1B status beyond the six year limit for this reason.
- An I-140 petition was filed on behalf of the H-1B principal and has been pending for at least 365 days, and the H-1B principal has obtained an extension of the H-1B status beyond the six year limit for this reason.
History and Function of the H-4 EAD Benefit
How AC21 Laid the Groundwork for the H-4 EAD
The benefit of EAD eligibility for an H-4 spouse is closely tied to the H-1B extensions put into place with the American Competitiveness in the Twenty First Century Act of 2000 (AC21), which first gave H-1B holders to extend their stay in the U.S. beyond the six-year limit if there is an immigrant petition approved or pending for a certain period on their behalf.
Specifically, AC21 allows H-1B visa holders to extend their stay beyond six years in cases where an immigrant worker petition (I-140) has been approved on their behalf but they cannot move forward with a green card due to lengthy priority date backlogs, or where a PERM application or I-140 petition was filed on their behalf but pending for 365 days or more.
The AC21 thus gave H-1B visa holders the ability to continue living and working in the U.S. while they are waiting in this long line to obtain their green cards.
Why DHS Extended Work Authorization to H-4 Spouses in 2015
In 2015, DHS then granted H-4 spouses the ability to obtain employment authorization documents (EAD) in recognition of the hardships that families face in this lengthy waiting period if the spouses were continuously restricted from working as a way of furthering AC21’s goals of incentivizing the United States’s retention of these skilled workers that US employers need.
Therefore, the EAD benefit for H-4 spouses applies in these situations where the H-1B visa holder is in this “extended” H-1B period under one of the provisions of AC21 as a way to reduce the economic stress on families waiting for the principal H-1B holder to be granted permanent residence.
Can Approval of a Self-Sponsored EB-1A or NIW Petition Make an H-4 Spouse Eligible for an EAD?
As noted in the above, there are three bases in which an H-4 spouse is eligible to apply and obtain an EAD: (1) approval of the I-140 filed on behalf of the H-1B principal; (2) H-1B principal being on the AC21 “extension” period based on a PERM pending 365 days or more; and (3) H-1B principal being on the AC21 “extension” period based on an I-140 pending 365 days or more.
An Approved I-140 Can Open EAD Eligibility Within the First Six Years
For applicants using basis (1), it is notable that the H-4 spouse may apply for an EAD as soon as the I-140 is approved for the H-1B principal. Thus, it is possible that an H-1B visa holder is still within the first six years of their H-1B status but nevertheless has an I-140 approved on their behalf, and at that point, an H-4 spouse may apply for an EAD.
Employer-Sponsored or Self-Petitioned: The Regulation Does Not Distinguish
The regulation at 8 CFR 214.2(h)(9)(iv) is also agnostic to whether the I-140 is an employer-sponsored or self-petitioned I-140. As such, if an H-1B visa holder independently applies for an EB2 NIW I-140 petition and that petition is approved, that would have the effect of making the H-4 spouse immediately eligible to apply for an EAD, regardless of how many years the H-1B holder has spent on H-1B status.
When the PERM or I-140 Has Been Pending 365 Days or More
For H-4 EAD applicants using basis (2) or (3), two conditions need to be met for EAD eligibility: not only must the PERM or I-140 petition have been pending for 365 days or more, but also the H-1B applicant must be granted an H-1B extension under AC21.
Because USCIS typically accepts extension requests only up to six months prior to the expiry of one’s current status, it may not always be possible for H-1B visa holders to switch to the AC21 extension as soon as they become eligible based on a pending PERM or I-140, so H-4 visa holders may need to wait some time until the principal becomes eligible to apply for the AC21 extension, at which point the H-4 holder could apply for the EAD.
However, if the PERM or I-140 petition is denied, this would negate AC21 extension eligibility and would also affect the EAD option.
Find Out Whether You Qualify for an H-4 EAD
Whether your eligibility depends on an approved I-140, a pending PERM, or a self-petitioned EB-1A or NIW, timing matters. Scott Legal, P.C. can review where the H-1B spouse’s green card process stands, confirm when the H-4 spouse can file, and prepare the employment authorization application. Schedule a consultation with our team to plan your next step.
