The United States Citizenship and Immigration Services (“USCIS”) will approve Form I-765, Application for Employment Authorization, for certain H-4 dependent spouses of H-1B workers. For dependent spouses to qualify for employment authorization, the H-1B spouse must either: 1) have an approved Form I-140, Immigrant Petition for Alien Worker, or 2) have held H-1B status for seven years or more.
To apply, eligible H-4 dependent spouses file Form I-765, Application for Employment Authorization, and the application fee with USCIS. With Form I-765, dependent spouses must submit proof of their marriage and evidence of their spousal relationship to the H-1B nonimmigrant. H-4 dependent spouses do not need to establish economic need for I-765 approval. Dependent spouses may not begin working in the United States until USCIS approves their Form I-765 and the applicant receives the I-766 employment authorization document (“EAD”). The EAD will be valid for the same validity period as the H-4 spouse’s remaining authorized period of admission (up to three years).
An EAD allows application for a social security number and permits any kind of work in the United States. To travel outside of the U.S., H-1/H-4 couples will need to maintain H nonimmigrant status and obtain H visas at U.S. consulates abroad. The EAD is not valid for travel.
H-4 dependent spouses may concurrently file Form I-765 with Form I-539, Application to Extend/Change Nonimmigrant Status. Applications for work authorization for an H-4 spouse filed concurrently with Form I-539 and the spouse’s Form I-129, Petition for a Nonimmigrant Worker, may be filed up to six months in advance of the requested start date. However, USCIS will not adjudicate the spouse’s I-765 application until the underlying Form I-539 and/or Form I-129 have been adjudicated.