H-4 spouses are eligible to apply for work authorization from USCIS if the H-1B principal:

1. Has an approved Form I-140 Immigrant Petition or
2. Has an approved successor form or
3. 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 by the 21st Century Department of Justice Appropriations Authorization Act (AC21).
   1. Sections 106(a) and (b) pertain to H-1B extensions beyond six years where as long as a labor certification application or I-140 immigrant visa petition was filed at least 365 days prior to the six-year expiration of H-1B status.

8 CFR 214.2(h)(9)(iv) allows for any of the three above situations for H-4 employment.  

H-4 children are not eligible for work authorization. 

If the above conditions are met, then the H-4 spouse is eligible to apply for work authorization. This requires filing a Form I-765 Application for Employment Authorization along with:

• evidence of your H-4 status, i.e. unexpired I-94
• a copy of government-issued photo ID
• proof of your marriage to the H-1B principal
• two (2) passport-style photos
• proof of H-1B principal's approved I-140 or proof of the pending I-140 or Labor Certification filed at least 365 days prior to the six-year H-1B expiration. 

All applicants must wait for approval of the Form I-765 and receive their EAD card before they can begin work. 

In our experience, filing a Form I-539 Application to Extend/Change Nonimmigrant Status and Form I-765 Application for Employment Authorization at the same time as the H-1B principal's extension means all cases will be approved at the same time. 

To extend an expiring H-4 EAD card, a new Form I-765 must be filed. H-4 spouses are now eligible for an automatic 180 day extension of EAD cards when a renewal Form I-765 is filed with USCIS prior to EAD and I-94 expiration dates. Automatic extensions are only available when the renewal is filed in the same eligibility category as the expiring EAD card. The automatic extension will run until the earlier of the following: 

• end date on Form I-94 showing valid status
• the approval or denial of the EAD renewal application, or
• 180 days from the date of expiration of the previous EAD.

At time of writing, the automatic EAD extension has been increased to 540 days. This change will be in effect until October 26, 2023.

It is important to note that the H-4 work authorization is independent of the H-1B specialty occupation requirements. Once the Form I-765 is approved, the H-4 spouse can work for any employer in any role. The role does not need to also qualify as a specialty occupation. An amendment to the H-1B doesn't require an amendment to the H-4 or EAD, and it doesn't require the spouse to stop work unless the H-1B principal fully loses status. The H-1B principal must continue to maintain their status in order for the H-4 spouse to keep their work authorization.

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Contact the Law Offices of James D. Eiss today to set up a consultation on H-4 work authorization.