Certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status will be permitted to apply to USCIS for an Employment Authorization Document (EAD) that will allow them to work in the United States. The H-1B should speak with the attorney assisting with her/his green card application for instructions on filing for an EAD.
H-4 dependent spouses of H-1B nonimmigrants will be eligible to apply for an EAD under the new rule if their H-1B spouse:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- 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 (That Act permits certain 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).
Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, s/he may begin working in the US.
The application consists of the following:
- Form I-765;
- Form I-765 fee;
- 2 EAD photos
- Copies of all H-4's Immigration Documents (passport, visa stamps, I-94s, Approval Notices);
- Copies of all H-1B's Immigration Documents (passport, visa stamps, I-94s, Approval Notices);
- Copy of H-1B's PERM Approval (if applicable);
- Copies of H-1B's Form I-140 Receipt and Approval Notices;
- Copies of H-1B's 3 most recent paystubs to verify employment
If permission for employment is granted, an Employment Authorization Document (EAD) is issued and is valid for any kind of full-time or part-time employment for the period of time stated on the EAD.
The employment authorization is valid only if the H-1B Worker is maintaining status.
An H-4 spouse must file Form I-765 with all supporting documentation each time an extension of employment authorization is necessary. Since the EAD will generally not be issued for longer than the validity of the H-1B's Approval Notice, any necessary extension of stay of the H-1B must be processed prior to the application for extension of H-1B employment authorization.
In order to avoid interruptions in H-4 employment authorization, file the Form I-765 for extension of employment authorization prior to the EAD expiration date (no more than 180 days in advance) so that the extension application is approved before the expiration of the current grant of authorization. H-4 employment authorization expires with the expiration of the EAD, and the mere filing of an application for new authorization does not permit employment during the adjudication process. If the current EAD expires, the H-4 must cease employment until receiving the new EAD.
H-4 dependents are subject to Social Security taxes. They are also subject to federal income taxes, and where applicable, state income taxes.
An H-4 dependent will not be able to obtain a Social Security number unless in possession of an Employment Authorization Document (EAD).