A proposal to allow spouses of certain H-1B visa holders to apply for EAD is pending review at the Office of Management and Budget (OMB). This proposed change would enable H-4 spouses to legally work in the U.S. while the H-1B spouse, meeting certain criteria, waits for his or her adjustment of status application to be adjudicated.
The Department of Homeland Security made an announcement on January 31, 2012 regarding the possibility for an H-4 spouse to work:
- Provide work authorization for spouses of certain H-1B holders.
This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.
The exact details of the proposal for allowing EADs for those in H-4 status are not public. However the abstract indicated that the proposed EAD eligibility would be limited to H-4s whose H1B primary spouses held status extended beyond the six-year limit under the American Competitiveness in the 21st Century Act (AC21).
While this is certainly a good news overall, it’s important to note that this benefit would apply only to those H-4 spouses of principal H-1B visa holders who have already started the application for U.S. permanent residence (Green Card) through employment and have extended their authorized stay in the U.S. under AC 21 Act. This means that an H-4 spouse whose H-1B principal has spent less than 6 years in the USA will not be eligible to apply for an EAD. Moreover, a PERM labor certification or I-140 would have to have been filed, and even approved to qualify for the 3 year H extension if less than 365 days had elapsed since submission.
This new development has given a new hope to several individuals in H-4 status who are currently in a very lengthy green card approval process. However the OMB review is usually a long and complex process, which can take unexpected turns. We will continue to update our clients and readers on future developments.