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Quirky Question #255, Certain Dependent Spouses of H-1B Workers Become Eligible for Employment Authorization


Can dependent spouses of H-1B workers get permission to work in the United States?

Answer:  By Saiko McIvor and Ieva Aubin

Saiko McIvor

Saiko McIvor

Ivea Aubin

Ivea Aubin

The U.S. Citizenship and Immigration Services (USCIS) amended the regulations to allow certain H-4 dependent spouses to work in the United States. This is excellent news, particularly for spouses of H-1B workers from India and China, who currently face 8-11 years of wait for permanent residence even with their employers’ approved sponsorship applications. As many as 179,600 H-4 dependent spouses are expected to benefit from this law during the first year of implementation.

The following H-4 dependent spouses will be eligible under this provision:

  • H-1B spouse has an approved Form I-140, Immigrant Petition for Alien Worker; or
  • H-1B spouse has been granted H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits certain H-1B workers seeking lawful permanent residence to remain and work in the United States beyond the standard six-year limit if a PERM Labor Certification Application was filed timely and is pending or approved.

The qualified H-4 spouses must apply for and obtain Employment Authorization Document with the Immigration Office.

Eligible H-4 spouses will need to apply for an Employment Authorization Document (Form I–766) by submitting Application for Employment Authorization (Form I–765) in order to be able to work. Persons who wish to apply for employment authorization under the amended regulations must pay the $380 filing fee to USCIS, provide two passport-style photos, and submit supporting documentation establishing eligibility. The application generally takes 3 months.

The amended regulations further provide that dependent H-4 spouses will also be able to concurrently file an Application for Employment Authorization (Form I-765) with an Application to Extend/Change Nonimmigrant Status (Form I-539).

USCIS will begin accepting applications on May 26, 2015. Any applications received prior to May 26, 2015, will be rejected.

Saiko McIvor

With 27 years of employment-based immigration practice and corporate law background, she represents business and individual clients with a variety of immigration projects, including temporary US visa applications, Permanent Resident applications, EB-5 applications, global mobility, and I-9 compliance and training, and merger and acquisition-related counseling. Saiko is a frequent lecturer and author of publications on employment-based immigration subjects.

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