DAPA 0, H-4 EAD 1

In two separate opinions authored by separate courts, the judiciary allowed H-4 EAD applications to proceed, and continued to hold back DAPA hopefuls from receiving EADs (Employment Authorization Documents, work permits basically).  

DAPA and expanded DACA: The State of Texas and other states sued DHS over Deferred Action for Parents of Americans (DAPA) and an expansion of the DACA program to remove the age cap and issue 3 year EADs, arguing the State of Texas would lose money by issuing driver's licenses to those who received DAPA and expanded DACA.  The District Court in Texas blocked the program by issuing a court order (an injunction), and on May 26, 2015, the Fifth Circuit Court of Appeals in a 2 to 1 decision upheld the injunction.  So for now, at least until the Supreme Court takes up the case, DAPA and expanded DACA continue to be on hold.

H-4 EADs: A group of technology workers who used to work for Southern California Edison sued DHS over the regulations allowing work permits for H-4 dependent spouses of those H-1B workers who have had an immigrant petition approved on their behalf or who are eligible for extensions beyond the sixth year of H-1B status due to the initiation under certain circumstances of a green card process.  On May 24, 2015, the District Court in the District of Columbia denied the tech workers' request to issue an injunction like the one in the DAPA case.  So H-4 EAD applications will proceed.  Today is the first day allowed for H-4 EAD applications.  

H-4 EAD Rule - Apply May 26

Following President Obama's November 20 announcement on executive improvements to the immigration system, a regulation has been issued to allow work permit applications for H-4 spouses who are married to H-1B workers who have taken steps to become permanent residents.

When does the rule take effect?  May 26, 2015 is the earliest that an application can be submitted.  Applications filed before that date will not be accepted.

Who can apply?  Not all H-4 spouses can apply, and this rule does not apply to H-4 sons and daughters.  It only applies to H-4 dependent spouses of H-1B nonimmigrants who: 

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; OR 
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

How do you apply?  Form I-765 with fee must be filed on or after May 26, 2015, along with proof of eligibility.  If the H-1B spouse has an approved I-140, then a copy of the I-797 approval notice should be sufficient, together with a marriage certificate and documentation of the H-1B employee's status.  If the H-1B spouse does not yet have an I-140 approved, but has received an extension beyond the six-year limit on H-1B status because of having a PERM Labor Certification application filed at least a year previously, then more extensive documentation is likely to be required, such as a copy of the H-1B filing requesting the AC21 extension.  The Form I-765 is being modified to ask for specific information relating H-4 work authorization and attention should be paid to the most recent version of the I-765 Form on the USCIS website.

What kind of work authorization is issued?  Upon approval of an I-765, an Employment Authorization Document (EAD), also called an Employment Authorization Card (Form I-766) is sent in the mail to the address listed on the application.  This is proof of work authorization for I-9 purposes.  The EAD can be used to apply for a Social Security Number.  A copy of the EAD card is shown below.

Can you file concurrently with a change of status?  Yes, the final rule makes it clear that someone who is not already in H-4 status, or who is applying to extend H-4 status, can file an I-539 application to change or extend status together with the I-765 application.  That way, the EAD application may be able to be approved faster than if a change of status or extension of status was first filed and adjudicated, and then an I-765 filed later.  

How early can I file to renew?  Usually an I-765 can be filed up to 120 days before expiration, but in cases where an I-539 extension of status is filed together (concurrently) with the I-765, USCIS will allow the application to be filed up to 180 days before the expiration of the EAD, to match the rules for extension of stay.  No applications, however, will be accepted before May 26, 2015.

How long does it take?  Typically, I-765 applications for work authorization take between 60-90 days.  Regulations require USCIS to act within 90 days on these types of applications, but that does not always happen.  The final rule notes, however, that when filing for a change of status to H-4 from some other status concurrently with the I-765, the 90 day period will not begin until the H-4 application is adjudicated.  This is probably to protect USCIS from a rush of applications that it cannot process in time.  In usual practice, an I-765 filed concurrently with an I-539 (such as in the case of an L-2 or E-2 spouse) is typically approved shortly after the change of status or extension of status is granted.  

How long will it be valid for?  The final regulation notes that the EAD card will be issued for the validity of the person's H-4 status.  So if the H-4 applicant only has 6 months left on H-4 status at the time the application is adjudicated, the EAD will only be valid for that 6 months.  If a new three year H-4 period is being applied for, or if the person already has three years in H-4 status left, then the EAD will be issued valid through the end of the person's H-4 status as presently granted.  Thus, it pays to be attentive to how much time is left on a person's H-4 status before applying for an EAD under this provision.

 Sample EAD Card, Form I-766, which is the document issued when applying on I-765.

Sample EAD Card, Form I-766, which is the document issued when applying on I-765.