Eligibility Based on H1B Spouse's Extension Beyond Six Years
Under the second category of EAD eligibility, the H-4 spouse is only eligible to apply for an EAD under the new rule if the principal spouse has obtained an H1B extension beyond the six-year limit pursuant to specific provisions of AC21. The provisions in question are contained in sections 106(a) and (b) of AC21. These sections of the law allow an H1B nonimmigrant to extend status beyond the six-year standard limit in one-year increments.
Eligibility for these one-year extensions is based on the H1B spouse being the beneficiary of either a PERM labor certification (PERM LC) application or an I-140 immigrant petition that was filed at least 365 days prior to the end of the sixth year of H1B status. It is not necessary for the PERM LC or the I-140 to have been approved for the H-4 spouse to be eligible under this rule. However, it is necessary for either the PERM LC or I-140 to still be "alive," meaning not having received a final denial or revocation decision.
Documentary Requirements to File the H-4 EAD Application
In order to obtain permission to work, an H-4 spouse will be required to file an application for employment authorization (I-765 form), along with the proper filing fee. This will have to be accompanied by proof that the applicant holds H-4 status and that the H1B spouse has maintained valid status and falls within one of the two qualifying categories, as explained above.
If eligibility is based on the H1B spouse being the beneficiary of an approved I-140, a copy of the I-140 approval notice should be sufficient as primary evidence of fulfilling this requirement. If this is not available, the U.S. Citizenship and Immigration Services (USCIS) may consider secondary evidence, such as the receipt number for the approved I-140 and/or evidence that the H1B worker has been granted an extension of status beyond the six-year limit. Note that if the I-140 was approved, but then withdrawn by the employer, the H-4 spouse may potentially still qualify if the H1B worker has been approved for an extension of status beyond six years under the applicable AC21 provisions.
If the H-4 spouse is eligible based on the principal spouse's extension of H1B status under AC21, the primary documentary evidence of eligibility is somewhat more flexible. Evidence such as a copy of the H1B spouse's passport, prior I-94 cards, prior H1B approval notices, and/or copies of pay stubs that would tend to establish that the H1B spouse has been granted an extension of status beyond six years may be used as primary evidence. The proof of the basis for the extension (i.e. pending PERM and/or pending I-140) is also necessary.
Timing for Filing and Validity Period of H-4 EADsThe H-4 EAD rule will go into effect on May 26, 2015. Applications filed prior to this date will not be accepted. Once the USCIS begins to accept these applications, the standard timeframe for adjudicating these cases is expected to be approximately 90 days. However, as explained previously the processing time will likely be longer for cases in which the applicant is requesting an extension or change of status concurrently with the EAD application. Premium processing is not available for EAD applications. EADs that are approved will be issued for "…a validity period that matches the H-4 spouse's remaining authorized period of admission, which [generally] may be as long as three years…"