USCIS allows certain H-4 spouses of H-1B workers to apply for Employment Authorization (EAD) under the (c)(26) category.
The H-4 spouse must submit identity documents and proof of valid H-4 status. In addition to meeting the following requirement:
- The H-1B spouse is the principal beneficiary of an approved Form I-140, Petition for Alien Worker; or
- The H-1B spouse has received an extension under AC21, including (1) a labor certification application filed at least 365 days prior to the H-1B 6-year limitation. If the labor certification is approved, include proof that an I-140 petition was filed within 180 days of the approval; or (2) proof that an I-140 petition was filed 365 days prior to the H-1B six-year limitation of stay.
If the H-4 EAD is filed concurrently with a change of status (Form I-539), USCIS takes the position that the I-539 must be first adjudicated. USCIS is no longer required to adjudicate EAD applications within 90 days, staring January 2017.