Dependents of H-1B visa holders (individuals working in a specialty occupation) are currently eligible for H-4 status, but unable to obtain work authorization from USCIS. However, USCIS is currently completing work to finalize a new regulation that would allow H-4 visa holders to apply for an Employment Authorization Document (EAD), which would provide them with work authorization in the U.S.
Under this new regulation, H-4 visa holders whose spouses are in the process of applying for employment-based immigrant visas, and who meet certain requirements will be eligible to apply for an EAD. There are 3 main steps involved in the employment-based immigrant visa application process, the first of which consists of the PERM application to the Department of Labor. The second step is the I-140 application to USCIS, during which the sponsoring company’s ability to pay the proposed wage is determined. If more than 365 days have passed since the PERM application or the I-140 application was filed, and the H-1B visa holder has applied for an H-1B extension beyond the 6th year, his/her dependents will be eligible to apply for an EAD. In addition, if the H-1B visa holder’s I-140 application has already been approved, H-4 visa holders may also be eligible to apply for an EAD. This new regulation has not been finalized yet, but we will continue to provide you with the most up-to-date information.