» Immigration Law Updates

Starting May 26, 2015, certain H-4 spouses will be eligible to apply for work authorization

February 24, 2015 | Written by Laura J. Mazel

Employers, foreign national employees and immigration counsel caught in the throes of Fiscal Year (FY) H-1B season face a predicted FY H-1B lottery yield of less than 50% this April.  We welcome the government’s announcement and its baby step taken today to alleviate some pressure on employers and employees due to limited H-1B visas.

This comes almost a year after first publishing the proposed rule last May and without any substantial changes from the proposed rule. Here is what employers, foreign national employees and candidates need to know:

• Limited eligibility. There are only two types of H-4 spouses eligible for work authorization:

1. 1. Where the primary H-1B worker spouse is the beneficiary of an approved I-140 petition; or
   2. Where the primary H-1B worker spouse has obtained a 7^th year or more H-1B visa extension as permitted under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act, which allows extensions beyond the normal 6 year maximum because an employer timely filed an I-140 petition by the employee’s 5^th year anniversary in H-1B status or a PERM labor certification application and the PERM was pending for at least 365 days.

• The government will accept EAD applications starting May 26. H-4 spouses may begin submitting an EAD application by mail.  E-filing does not appear available at this time. 

• Original EADs are required to work. Employers may not complete I-9 employment verification forms without viewing original EAD cards if that is the basis of work authorization.  The government’s website screen shot of an approved EAD application will be insufficient.  EADs currently take 70-90 days to process. Be prepared for delays, however, given the anticipated high volume of applications.

• Anticipate employee and candidate questions on timing of green card sponsorship.  Employers may expect interest from certain employees to begin the green card process earlier, as well as to file I-140 visa petitions by premium processing.

• Other foreign nationals who may ultimately benefit from the rule. 
  • Fiscal Year H-1B “lottery losers,” or H-1B employees running out of H-1B work authorization may benefit from the final rule,  provided their spouses are sufficiently far enough along in the green card process.
  • F-1 or J-1 holders whose H-1B spouses are sufficiently far enough along in the green card process may want to consider obtaining H-4 visas, and then, eligibility, for work authorization.

WSM has been working with our employer clients on streamlined processes to assist in obtaining work authorization for eligible H-4 spouses.

We hope this information is helpful.