One of the most common issues that arises among H-1B visa holders is whether their spouse has the ability to work in the United States. The H-1B visa is a work permit for highly qualified foreign professionals in fields such as technology, engineering, health, science, and others. While the visa holder has the right to work in the country in his or her professional field, spouses of visa holders also have options to be able to work, but under certain conditions. In this article we explain how this process works.
Your spouse and unmarried children under 21 years of age may apply for admission under the H-4 nonimmigrant classification. Certain H-4 dependent spouses of H-1B nonimmigrants may file Form I-765, Application for Employment Authorization, provided the H-1B nonimmigrants have begun the process of applying for employment-based lawful permanent resident status.
Let us remember that the H1B Visa applies to persons who wish to provide services in a specialized job, services of exceptional merit and abilities related to a cooperative development or research project with the Department of Defense (DOD) or services as a haute couture model of distinguished merit or abilities.
Eligibility Requirements
An H-4 visa holder spouse may indeed work in the United States if certain specific conditions are met. These are the two main situations in which a spouse may obtain work authorization. You are eligible if you are the H-4 dependent spouse of an H-1B nonimmigrant if your H-1B nonimmigrant spouse:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers; or
- Has been granted H-1B status under sections 106(a) and (b) of AC21. Under AC21, H-1B nonimmigrants seeking employment-based lawful permanent residence may be eligible to work and remain in the United States beyond the six-year H-1B period of admission limitation.
How to Apply
You must file Form I-765, Application for Employment Authorization, to request employment authorization as an H-4 dependent spouse. You must receive an Employment Authorization Document (EAD/Form I-766) from USCIS before you may begin working. Use the newest version of Form I-765 to prevent delays or the need for USCIS to issue you a request for evidence.
Carefully follow these steps to prevent your application from being rejected and returned to you:
1. Complete Form I-765 using the Instructions for Form I-765 . USCIS will reject any application that is not accompanied by the proper filing fees or signature.
- If you are filing Form I-765 together with Form I-485, you must specify your eligibility category as (c)(9), not as (c)(26), and pay the Form I-485 filing fee. Follow the Form I-485 filing instructions to avoid processing delays.
- If you file a Form I-765 together with a Form I-485 at the filing address for Form I-765 category (c)(26), USCIS will reject your Form I-485 and any corresponding fees. Additionally, if you included the fees for both forms on the same check or money order, USCIS may also reject your Form I-765 for category (c)(26).
2. Submit supporting evidence (see chart below). Submitting sufficient supporting evidence will minimize the likelihood that USCIS will need to send you a request for more evidence.
- Evidence of Your H-4 status
- A copy of your current Form I-797 approval notice for Form I-539, Application to Extend/Change Nonimmigrant Status; or
- A copy of Form I-94, Arrival/Departure Record, showing your admission as an H-4 nonimmigrant or your most recent approved extension of stay.
- Evidence of A government-issued identification document with photo
- A copy of your last EAD (if any);
- A copy of the biometric page of your passport;
- A birth certificate with photo ID;
- A visa issued by a foreign consulate; or
- A national identity document with photo.
- Evidence of Your relationship to the H-1B nonimmigrant A copy of your marriage certificate.
Validity of Employment Authorization
You will not be authorized to work until USCIS approves your Form I-765. Once your employment authorization is approved, the expiration date on your Employment Authorization Document (Form I-766 EAD) should be the same date as the expiration date on your most recent Form I-94 indicating your H-4 nonimmigrant status. Generally, you are only authorized to work through the expiration date on your EAD. If you are still eligible for employment authorization after that date, you should file for a renewal EAD by submitting another Form I-765. You cannot file for a renewal EAD more than 180 days before your original EAD expires
You may qualify for automatic extension of your existing employment authorization. See our Automatic Employment Authorization Document (EAD) Extension page for more information on this automatic extension.
What options does the H-4 spouse have if he or she cannot obtain a work permit?
If the spouse does not meet the conditions necessary to obtain the EAD and is not legally entitled to work, there are some alternative options that could be considered:
- Volunteering: Although the spouse cannot receive financial compensation, he or she can participate in volunteer activities at non-profit organizations.
- Study and educational programs: If the H-4 visa allows it, the spouse can enroll in study programs or professional training courses. However, this does not automatically grant the right to work.
