Published May 26, 2015


Certain qualified spouses of H-1B visa holders, who themselves hold H-4 status, may now be able to apply for an Employment Authorization Document pursuant to an Executive Order announced last year, and put into effect this week.

To start, we will define a couple important terms:

Employment Authorization Document (EAD), is a general work permit issued by the U.S. Department of Homeland Security/Citizenship and Immigration Services with a validity ranging from 1 to 2 years typically, and which authorizes the holder to work as much, or as little, as they like, and for any employer, or even themselves.

An H-1B visa is the most common work visa the U.S. government grants foreign professional workers.  To qualify for an H-1B visa, the worker A) is petitioned by a particular U.S. employer and B) will be employed in a professional, or professional type, position – where the attainment of a Bachelor’s degree, or equivalent, is usually required.  Positions that are commonly the basis of an H-1B work visa petition include:  Accountant, IT Manager, Systems Analyst/Software Engineer/Programmer, Engineer – various subspecialties, Physician, Teacher, Scientific Researcher, Physical Therapist, Medical Technologist, Occupational Therapist, , Rehabilitation Coordinator, Director of Nursing, Quality Assurance Manager, Operations Manager, Financial Analyst, Marketing Manager, Forensic Consultant, Lawyer, Media Manager, Marketing Manager, Graphic Designer, Architect  – among others.

The applicants who are now eligible to obtain an Employment Authorization Document under this newly implemented program must be in one of the following two groups:

1)        Spouses of H-1B visa holders, who: 1) themselves hold valid H-4 status, and 2) whose spouse is in valid H-1B status and are the beneficiary of an approved I-140 immigrant worker petition, but where visas are not current available in the Employment Preference at play – EB-1, EB-2, EB-3, other workers, etc.  i.e. their priority date is not yet current

2)        Spouses of H-1B visa holders, who:  1) themselves hold valid H-4 status,  2) whose spouse is in valid H-1B status and the beneficiary of a PERM, Alien Labor Certification Filing (stage 1 in the Green Card process for most job based applicants) or I-140 petition that has been pending a year or more AND 3) the H-1B employer has obtained approval for an extension of the H-1B worker’s nonimmigrant status for a period beyond the usual 6 year limit.

The implementation of this program almost did not happen.  Like the other Executive Orders announced last year by President Obama, this program too was the subject of a federal court action seeking to block its implementation.  Unlike the bulk of last year’s Executive Order – where millions of undocumented foreign nationals stand to benefit – this narrower program overcame 11th hour legal challenges. 

Lastly, applicants for Employment Authorization under this program are reminded to utilize the most recently released FORM I-765 application (see, as it allows for citation and reference to the new section of law and basis of eligibility.

PUBLISHED May 26, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois