A proposed regulation which would permit certain H-4 spouses of H-1B visa holders to apply for Employment Authorization Documents (EADs) was published on May 12, 2014 by the Department of Homeland Security (DHS).
Unfortunately not all H-4 spouses will be eligible for an EAD. The proposed regulation limits EADs to H-4 spouses where the H-1B spouse is the beneficiary of an approved I-140 petition; AND where the H-1B spouse has been granted an H-1B extension beyond the 6th year under AC-21. Finally, if the H-1B spouse is the beneficiary of an approved I-130 family based petition, then the H-4 spouse will not be eligible for an EAD.
In the end, many will ask “So What?” because the proposed regulation does not really benefit H-4 spouses the same way as E-2 and L-2 spouses, who qualify to receive EADs without such limitations. Moreover, E-2 spouses can accept employment without an EAD and not have any adverse consequences to their immigration status.
Yet, something for certain H-4 spouses is still better than nothing. It is estimated that approximately 100,000 H-4 spouses will qualify for an EAD the first year and 36,000 will qualify the following year. Hence, it is critical that the H-1B spouse have the PERM process started as soon as possible in order to reduce the total waiting time for the H-4 spouse to apply for an EAD.
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