On February 25, 2015, the Department of Homeland Security (DHS) issued a Final Rule amending DHS regulations to extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident status.

On February 25, 2015, the Department of Homeland Security (“DHS”) issued a Final Rule amending DHS regulations to extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident status. Under the new Rule, H-4 spouses will be able to apply for and obtain an Employment Authorization Document (“EAD”) if they can document that their H-1B spouse is maintaining his or her status; that the H-4 has been admitted to the U.S. in H-4 status; and the H-1B spouse either: (a) is the beneficiary of an approved I-140 petition or (b) “has been provided” H-1B status under sections 106(a) and (b) of AC21.

H-4 spouses who qualify for this benefit may apply for it any time on or affect the effective date of the Rule, which is May 25, 2015. They may file the Form I-765, Application for Employment Authorization Document, either standing alone or concurrently with an application to extend or change status to H-4. The estimated processing time for EADs is 90 days; however, the EAD may not be approved until a concurrently filed application for change or extension of status is also approved, and those applications sometimes take longer than 90 days.

H-4 EAD will be issued with a validity period of up to 3 years, not to exceed the duration of the alien's status.

H-4 EAD, like any other EAD, permits open market employment, meaning that qualifying H-4 spouses will actually have more latitude in employment opportunities than their H-1B spouses, who are permitted to work only for the H-1B petitioner/employer.

There are a couple of fine points about the provisions in the Final Rule which may not be readily apparent. First, it may appear at first blush that the Final Rule links H-4 EADs to H-1B spouses who have obtained a post 6th year H-1B extension under AC21, but it does not—at least, not exclusively. AC21 contains two provisions for a post 6th year H-1B extension. Section 104(c) of AC21 permits H-1B holders to extend their stay past the 6th year in three-year increments if an I-140 petition has been approved on the alien's behalf and a visa number is not currently available. Section 106(a) and (b), on the other hand, permit H-1B holders to extend their stay past the 6th year in one-year increments if a labor certification or I-140 petition was filed on the alien's behalf at least 365 days ago and a final decision has not yet been made to deny the alien's permanent residency application. While the Final Rule is closely patterned after AC21's post 6th year H-1B extension provisions, it does not mirror them precisely. Instead, the Final Rule permits H-4 spouses to obtain EAD if either their spouse has obtained a post 6th year H-1B extension under sections 106(a) and (b) of AC21 or if they have an approved I-140. The latter provision does not require that the H-1B holder have received a post 6th year H-1B extension. Therefore, it is possible that, where an H-1B becomes the beneficiary of an approved I-140 petition prior to spending six years in the U.S. in H-1B status, her spouse may obtain an H-4 EAD long before that six year mark.

Second, it should also be noted that the provision applies only to grant EAD to H-4 spouses, and does not apply to H-4 dependent children.

While these fine points can be distilled from a careful reading of the Final Rule, there are several other questions which the Rule raises but does not answer. For those attorneys who have been advising clients for over a decade on post 6th year H-1B extensions in the absence of any implementing regulations, we are all too familiar with the strange scenarios that can arise for H-1B workers who currently are, or have been, in the process of obtaining permanent residency. Based on this experience, the following questions come to mind:

What if the Spouse's I-140 is revoked?

The Final Rule permits an H-4 spouse to obtain EAD if the H-1B holder “is the beneficiary of an approved Immigrant Petition for Alien Worker,” or I-140. The Rule does not state whether the H-4 spouse remains eligible for EAD if the approved I-140 petition has since been revoked. Again, this provision for H-4 EAD is not linked to the H-1B principal's receipt of a post-6th year H-1B extension under section 104(c) of AC21. In that context, the statutory text of AC21 provides that eligibility for a post 6th year H-1B extension ends when a final decision has been made to deny any step in the permanent residency application process. Therefore, revocation of an approved I-140 would put an end to an H-1B holder's eligibility for post 6th year extensions. However, nothing in the Final Rule limits an H-4 spouse's eligibility for EAD upon revocation of an I-140 which previously had been approved. Does the H-4 therefore remain eligible for EAD for as long as he or she maintains that status, even if the H-1 holder's I-140 is denied?

What if the I-140 was filed with a different employer than the one that is currently the H-1B petition for the beneficiary?

Nothing in the Final Rule limits H-4 spousal eligibility for EAD to cases where the H-1B principal remains employed by the I-140 petitioner. There are several instances in which the I-140 petition may not be the same as the H-1B beneficiary's current employer and H-1B petitioner. Nothing even limits an H-1B holder to obtaining a post 6th year H-1B extension with the same employer that filed the I-140 forming the basis for his extension. The same latitude would seem to apply to H-4 spouses in obtaining EAD.

What if the H-1B beneficiary has received a post-6th year H-1B extension but has not held H-1B status for six years yet?

As stated above, one of the ways in which an H-4 spouse can qualify for EAD is based on approval of the H-1B principal's I-140 petition, and this may occur long before the H-1B holder has spent six years in the U.S. However, there are also instances in which the H-1B petitioner may obtain a post-6th year extension of his H-1B status based on AC21 §106(a) and (b) even before having spent six full years in the U.S. That is because USCIS permits combined pre- and post-6th year H-1B extension requests. For example, someone who has been in the U.S. for five years in H-1B status may, due to changing employers at some point during his stay, have an H-1B petition set to expire at the end of his fifth year of H-1B status, thereby making him eligible for only one additional year of H-1B status. If, however, at the time that extension petition is filed, the beneficiary is also eligible for a post-6th year H-1B extension, that extension request may be combined with the request to extend his stay for that last one year, making the total extension valid for possibly up to three years, some of which is before and some of which is after the end of his 6th year.

The regulatory language in the Final Rule does not limit H-4 EAD to situations in which the H-1B spouse is already past the 6th year of H-1B status, even in cases where the H-4 EAD eligibility is based on a post 6th year H-1B extension under AC21. Therefore, these H-4 spouses should be eligible for EAD even before the spouse reaches his or her 6th year of H-1 status.

Does the H-1B Spouse Need to Still Be Seeking Permanent Residency?

The Final Rule permits H-4 spouses to obtain EAD if the H-1B holder “has been provided H-1B status under sections 106(a) and (b) of AC21.” But what if the H-1B holder “has received” such an extension but is no longer in the process of obtaining permanent residency? Does the H-4 spouse lose eligibility for employment authorization? Take, for example, an H-1B holder who obtains a post 6th year H-1B extension under AC21 106(a) and (b) based upon a pending labor certification. That labor certification is ultimately denied and the H-1B holder leaves the United States for a whole year. He then finds a new U.S. employer who files a cap-subject H-1B petition on his behalf, and the petition is approved. That H-1B holder then reenters the U.S. Does the fact that the H-1B holder “has received” such an extension in the past make the H-4 spouse eligible for an EAD? Based upon a plain reading of the regulatory language, the answer is yes, it does.

In conclusion, the Final Rule to implement H-4 spousal EAD is a long overdue benefit which will benefit many foreign workers as well as the U.S. economy. However, there are many open questions regarding the scope of this benefit.