H-4 spouses will be eligible to apply for employment authorization if:
- His/her H-1B spouse is the principal beneficiary of an approved I-140 petition; or
- His/her H-1B spouse is the beneficiary of an approved H-1B extension past the 6th year maximum because at least 365 days have elapsed since an unexpired PERM labor certification application, or a pending I-140 petition, was filed for the H-1B worker.
The new rule has the potential to benefit the families of H-1B workers whose green card processes have been delayed significantly due to the annual limits on immigrant visa availability. In particular, this benefits the H-4 spouses of H-1B workers chargeable to India or China, whose I-140 petitions were filed in the EB-2 or EB-3 preference categories and may be backlogged for many years. However, the new rule does not apply to H-4 spouses of H-1B1 (Chile/Singapore), H-2 or H-3 nonimmigrants.