USCIS announced today that the final rule permitting certain H-4 spouses to apply for employment authorization will go into effect on May 26, 2015. The rule provides work permits upon application for H-4 spouses of H-1B nonimmigrants who are on the pathway to permanent residence, but who cannot yet apply for their green cards due to backlogs.

Specifically, starting on May 26, 2015, an H-4 spouse would be eligible to apply for employment authorization if:

  • His/her H-1B spouse is the principal beneficiary of an approved I-140 petition; or
  • His/her H-1B spouse is the beneficiary of an approved H-1B extension past the 6th year maximum based on AC21 (i.e., because at least 365 days have elapsed since an unexpired PERM labor certification application, or a pending I-140 petition, was filed for the principal beneficiary).

This has the potential to benefit the families of H-1B workers whose green card processes have been delayed significantly due to the annual limits on immigrant visa availability.  In particular, this benefits the H-4 spouses of H-1B workers chargeable to India or China, whose I-140 petitions were filed in the EB-2 or EB-3 preference categories and may be backlogged for many years.

This rule does not significantly affect H-4 spouses who have already applied for adjustments of status (as they can already apply for work permits through that process), nor is this rule applicable to H-4 spouses of H-1B1 (Chile/Singapore), H-2 or H-3 nonimmigrants.