As we previously reported, effective May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will accept applications for employment authorization for certain H-4 spouses. Specifically, to qualify, the H-4 nonimmigrant must be the dependent spouse of an H-1B nonimmigrant who:
(A) Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
(B) Has been granted H-1B status 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, known as “AC21.” (AC21 permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status).
USCIS has clarified that the Form I-765, Application for Employment Authorization, may be filed:
(1) As a stand-alone application if the applicant is currently in the U.S. in H-4 status;
(2) Together with a Form I-539 application requesting a change to or extension of H-4 status; or,
(3) Together with a Form I-129 requesting H-1B status for the principal spouse and a Form I-539 application requesting a change to or extension of H-4 status for the applicant.
Qualifying spouses seeking H-4 employment authorization must be in the U.S. to file the Form I-765 application. In situations where the Form I-765 is filed together with a Form I-539, or both a Form I-539 and a Form I-129, as described in (2) and (3) above, USCIS will not adjudicate the Form I-765 application until it first approves the requests made pursuant to the other forms. USCIS expects that once granted, the employment authorization period will generally match the H-4 status expiration date. An H-4 spouse may renew an EAD provided he or she continues to meet the eligibility criteria. Importantly, USCIS does have the discretion to revoke H-4 employment authorization if a qualifying criterion is no longer met. For example, if the application for employment authorization is predicated on an approved I-140 petition and the I-140 petition is later revoked, USCIS may also revoke the H-4 employment authorization. Both the principal H-1B nonimmigrant and the H-4 spouse must maintain their respective lawful nonimmigrant status to remain eligible for this benefit.
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