5/22/15 UPDATE: The text below is now also included in the 12-page I-765 Instruction Booklet, located at http://www.uscis.gov/i-765.
I normally only post original writings, but for this I will make an exception.
Although USCIS has
not formally published these instructions or the new I-765 to be used for H4
EADs, in a few weeks those items will be found at www.uscis.gov/i-765.
Excerpt from future I-765 Instructions for H-4 EAD:
G. Spouse of an H-1B
Nonimmigrant--(c)(26). File Form I-765 along with
documentation of your current H-4 admission or extension of stay. You must also submit documentation
establishing either that the H-1B principal has an approved Immigrant Petition
for Alien Worker (Form I-140), or that your current H-4 admission or extension
of stay was approved pursuant to the principal H-1B nonimmigrant’s admission or
extension of stay based on sections 106(a) and (b) of the American
Competitiveness in the Twenty-First Century Act (AC21). For your convenience, you may file Form
I-765 with Form I-539, Application to Extend/Change Nonimmigrant Status. However, USCIS will not process Form I-765 (except filing fees), until after USCIS has adjudicated your Form I-539. You may also file Form I-765 at the same time as Form I-539 and Form I-129, Petition for a Nonimmigrant
Worker. The 90-day period for adjudicating Applications for Employment Authorization filed together with Form
I-539 does not begin until USCIS has determined whether you are eligible for
the underlying H-4 nonimmigrant status.
Please see the USCIS Web site at www.uscis.gov/I-765 for the most current information on where to file this benefit request.
1. Proof of Your Status. You must submit a copy of your current Form I-797 approval notice for Form I-539 or Form I-94 showing your admission as an H-4 nonimmigrant or your most recent approved extension of stay; and
2. Proof of Relationship to the Principal H-1B. You must submit a copy of the marriage certificate for you and the principal H-1B nonimmigrant.
3. Basis for Work Authorization. Acceptable documentation includes:
a. Approved Form I-140. Submit evidence that the H-1B principal is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140). You may show this by submitting a copy of the H-1B principal’s Form I-797 approval notice for Form I-140; or
b. H-1B Principal Received AC21 106(a) and (b) Extension. Submit evidence that the principal H-1B nonimmigrant has received an extension of stay under AC21 106(a) and (b). You may show this by submitting copies of the H-1B principal’s passports, prior Forms I-94, and current and prior Forms I-797 for Form I-129. In addition, please submit evidence to establish one of the following bases for the H-1B extension of stay:
Based on Filing of a Permanent Labor Certification Application. Submit evidence that the H-1B principal is the beneficiary of a Permanent Labor Certification Application that was filed at least 365 days prior to the expiration of the six-year limitation of stay. You may show this by submitting a copy of a print out from the Department of Labor’s (DOL’s) Web site or other correspondence from DOL showing the status of the H-1B principal’s Permanent Labor Certification Application. If DOL certified the Permanent Labor Certification, you must also submit a copy of Form I-797 Notice of Receipt for Form I-140 establishing that the Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification; or
Based on a Pending Form I-140. If the preference category sought for the principal H-1B spouse does not require a Permanent Labor Certification Application with DOL, submit evidence that the H-1B principal’s Form I-140 was filed at least 365 days prior to the expiration of the six-year limitation of stay and remains pending. You may show this by submitting a copy of the Form I-797 Notice of Receipt for Form I-140.
c. Examples of Secondary Evidence. If you do not have any evidence relating to the H-1B principal as requested in a or b above, you may ask USCIS to consider secondary evidence in support of your application for work authorization as an H-4 spouse. For example, such information may include the receipt number of the H-1B principal’s most current Form I-129 extension of stay or the receipt number of the H-1B principal’s approved Form I-140 petition. Failure to provide this information about the H-1B principal may result in a delay in the adjudication or denial of your application for employment authorization.
1. Proof of Your Status. You must submit a copy of your current Form I-797 approval notice for Form I-539 or Form I-94 showing your admission as an H-4 nonimmigrant or your most recent approved extension of stay; and
2. Proof of Relationship to the Principal H-1B. You must submit a copy of the marriage certificate for you and the principal H-1B nonimmigrant.
3. Basis for Work Authorization. Acceptable documentation includes:
a. Approved Form I-140. Submit evidence that the H-1B principal is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140). You may show this by submitting a copy of the H-1B principal’s Form I-797 approval notice for Form I-140; or
b. H-1B Principal Received AC21 106(a) and (b) Extension. Submit evidence that the principal H-1B nonimmigrant has received an extension of stay under AC21 106(a) and (b). You may show this by submitting copies of the H-1B principal’s passports, prior Forms I-94, and current and prior Forms I-797 for Form I-129. In addition, please submit evidence to establish one of the following bases for the H-1B extension of stay:
Based on Filing of a Permanent Labor Certification Application. Submit evidence that the H-1B principal is the beneficiary of a Permanent Labor Certification Application that was filed at least 365 days prior to the expiration of the six-year limitation of stay. You may show this by submitting a copy of a print out from the Department of Labor’s (DOL’s) Web site or other correspondence from DOL showing the status of the H-1B principal’s Permanent Labor Certification Application. If DOL certified the Permanent Labor Certification, you must also submit a copy of Form I-797 Notice of Receipt for Form I-140 establishing that the Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification; or
Based on a Pending Form I-140. If the preference category sought for the principal H-1B spouse does not require a Permanent Labor Certification Application with DOL, submit evidence that the H-1B principal’s Form I-140 was filed at least 365 days prior to the expiration of the six-year limitation of stay and remains pending. You may show this by submitting a copy of the Form I-797 Notice of Receipt for Form I-140.
c. Examples of Secondary Evidence. If you do not have any evidence relating to the H-1B principal as requested in a or b above, you may ask USCIS to consider secondary evidence in support of your application for work authorization as an H-4 spouse. For example, such information may include the receipt number of the H-1B principal’s most current Form I-129 extension of stay or the receipt number of the H-1B principal’s approved Form I-140 petition. Failure to provide this information about the H-1B principal may result in a delay in the adjudication or denial of your application for employment authorization.
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