H-1 – Work as an H-4

 

Working in the US as an H-4 Spouse

 

One always felt very sorry for the H-4 spouse in the US. Unlike the L-2 spouse who was allowed to work, the H-4 spouse was strictly not allowed to work in the US. Effective May 26, 2015, the Department of Homeland Security (DHS) began accepting applications for employment authorization from certain H-4 dependent spouses of H-1B nonimmigrants. The ‘lucky’ H-4 spouses are those whose H-1B principal applicants are seeking employment-based lawful permanent resident status.

 

Specifically the following categories of H-4 spouses will be allowed to apply for and work in the US.

  1. If principal applicant has an approved I-140; or
  2. If the principal applicant has been granted H-1B status under sections 106(a) and (b) of 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.

 

In other words, if you are an H-1B non-immigrant but have an approvedIi-140, then even if you are within your 6 year H-1B limit of stay in the US, your H-4 spouse will be eligible to work. Alternatively, your wife will also be able to work, if you are in your 7th or more year of stay in the US, based on a PERM application or an I-140 that was filed 365 days before the end of your 6th year.

 

If you have an approved PERM but are not yet in your 7th year (i.e. you have been in H-1B status for less than the maximum permissible 6 years) your spouse could only apply after your I-140 has also been approved.

 

If the PERM process has not yet begun for you, then this new ruling would not benefit your H-4 spouse at all. It is intended only for potential immigrants who have been waiting for their Green Cards to materialize because of the long waiting periods involved.

 

Applicants must file Form I-765, Application for Employment Authorization with a 2/13/15 edition date. The revised Form I-765 contains the eligibility category (c)(26) for those H-4 dependent spouses who are permitted to apply for employment authorization in the US.

 

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth and the viewer.