Effective May 2015, certain spouses of H-1B visa-holders who are present under H-4 status will be eligible to apply for an employment authorization document, or EAD. Currently, those in H-4 status—the category assigned to spouses and children of H-1B visa-holders—are not authorized to work in the States, creating economic and personal hardship for these families during lengthy wait periods for green cards. This much-anticipated change in immigration law benefits an estimated 179,600 H-4 visa-holders who may be eligible to apply for employment authorization this year alone.
The new regulation allows H-4 spouses to apply for employment authorization if the H-1B spouse is either (1) the principal beneficiary of an approved immigrant visa (I-140) petition, or (2) was granted an extension of H-1B status beyond the six-year limit based on a PERM application for labor certification that has been pending for more than 365 days. Absent any federal litigation or program delays, H-4 visa-holders may apply for an EAD beginning May 26, 2015. The current estimated case processing time is 90 days, so an H-4 visa-holder with an approved EAD may accept employment no sooner than August 26, 2015. Additionally, spouses present under other visa categories may also consider filing a change to H-4 status if work authorization is desired.
Employees who are sponsored for employment-based green cards are classified into certain categories based on the terms of their employment, as well as their educational qualifications and professional experience. All immigrant visa categories are limited by annual and per-country caps, causing long delays before employees in those categories are permitted to apply for a green card. As an example of this backlog, certain Indian employees whose immigrant visa petition was approved in August 2005 were only permitted to apply for a green card beginning March 2015, nearly 10 years later.
An approved EAD will likely have the same validity period of the applicant’s H-4 visa, which is up to three years. Applicants who receive EADs may also apply for a Social Security number.
