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H-4 Spouses of H-1B workers with Pending Employment-Based Green Card Process to Become Eligible for

On May 6, Department of Homeland Security (DHS) published a proposed regulation which, if adopted, will enable wives and husbands of H-1B visa holders to work in the United States.

This rule will apply only to spouses of H-1B workers who hold H-4 visa status. Currently, H-4 spouses are not eligible for employment authorization. The change proposed by DHS would allow H-4 spouses of some H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Who is Eligible?

H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved I-140 Immigrant Petition for Alien Worker;


  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

The proposed rule was issued yesterday, but I have already been asked this question:

When can I get my H-4- based work permit?

The answer is: months to wait + weeks to wait + 90 days to wait. This is why:

  1. This is not a rule yet, this is a PROPOSED rule. It takes the government several months (best case scenario) to go put a proposed rule into effect.

  1. Once the rule is adopted, it will take time for USCIS to establish the application procedure. Even in the age on Internet, this can be weeks or month.

  2. Once the rule is adopted by DHS and employment authorization procedure is established, it will likely involve filing an I-765 Application for Employment Authorization (EAD). Current EAD processing times are approximately 90 days.

Posted by Mira Mdivani Corporate Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM

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