USCIS updates FAQs on employment authorization for certain H-4 spouses

On March 10, 2016, USCIS updated its FAQ on employment authorization for certain H-4 spouses. Pursuant to new regulations that went into effect last May, an H-4 spouse whose H-1B spouse is the principal beneficiary of an approved I-140 Petition for Immigrant Worker or whose H-1B spouse has filed for an extension of status beyond the normal six-year limit in accordance with the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21") is now eligible to request employment authorization. In March, 2016, USCIS updated its FAQ on this topic to address several unique issues that arise for H-4 spouses seeking this employment authorization. 

This multi-page FAQ helps applicants determine if they are eligible to file, reviews the application process, explains the basis for adjudication of the applications, discusses the applicant's status while awaiting adjudication, and outlines what happens once employment authorization is received. In particular the FAQ confirms the H-4 spouse must be physically present in the U.S. to apply for employment authorization and additionally confirms that if the applicant's I-765 application is filed concurrently with an I-539 application to change status to H-4, the applicant must remain in the U.S. until the request to change status to H-4 is approved.  USICS will deny both the I-539 and I-765 application for employment authorization if the applicant travels abroad before the change of status is approved.  To read the full FAQ, please visit the USCIS website.

Naturalization application denied for unauthorized employment prior to gaining legal permanent residence

In a recent decision, the U.S. Circuit Court for the 8th Circuit denied an application for U.S. citizenship after determining the applicant had engaged in unauthorized employment while in the U.S. pursuant to a non-immigrant, R-1 visa. The applicant in this case began working for an employer more than six months prior to the date that he was authorized by USCIS to do so, making him ineligible to apply for adjustment of status. This period of unauthorized employment was not known to USCIS at the time the agency approved his green card, but came to light when he listed his employers and dates of employment on his application for U.S. citizenship. As this unauthorized employment would have caused the applicant's green card application to be denied, the USCIS adjudicator conducting the naturalization interview determined that the legal permanent resident status should never have been granted in the first place and therefore denied the naturalization application.  Both a U.S. District Court and the U.S. Circuit Court for the 8th Circuit upheld USCIS's denial. 

This outcome is a warning to any foreign nationals who believe receiving a green card ends any possibility of further scrutiny into their employment and immigration history.  This case also highlights the importance of applicants ensuring any and all work undertaken in the U.S. prior to receiving a green card is specifically authorized. If you have questions regarding employment authorization or whether it could impact a green card or naturalization application, you should contact one of our immigration attorneys at or by calling us at 617-482-1010 before applying.