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Employment Authorization for H-4 Dependent Spouses of Certain H-1B Nonimmigrants Under the New DHS Rule - April 2015

April 15, 2015

by Anne C. Lahren

On February 25, 2015, the Department of Homeland Security ("DHS") issued a final rule amending DHS regulations to extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident status. This final rule, effective May 26, 2015, supports DHS goals of attracting and retaining highly skilled foreign workers by helping to alleviate some of the hardship caused by historically long delays for immigrant visas in the second (EB-2) and third (EB-3) preference categories for employment-based permanent resident adjustment. In order for an H-4 dependent spouse to qualify under the new final rule, the H-1B principal nonimmigrant must be on track to secure employment-based lawful permanent resident status and must either be the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140) or have been granted H-1B status pursuant to sections 106(a) and 106(b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). AC21 106(a) and (b) permits H-1B extentions beyond the six-year maximum duration of authorized stay if 365 days or more have elapsed since the filing of the labor certification application or the filing of an immigrant visa petition.

Prior to May 26, 2015 under the current rule, all H-4 dependents are ineligible for work authorization. 8 CFR 214.2(h)(9)(iv). The spouse’s inability to work can lead to personal and financial hardships for the families of H-1B nonimmigrants and this lack of employment authorization, combined with historically long waits for employment-based immigrant visas, has been a deterrent to some highly-skilled H-1B nonimmigrants seeking lawful permanent resident status in the United States which, in turn, has made it more difficult for U.S. employers to retain their highly-valued nonimmigrant employees. In enacting the new final rule, DHS focuses on the benefit to the U.S. employer as the basis for extending work authorization to eligible H-4 dependent spouses.

Beginning May 26, 2015, eligible H-4 dependent spouses may file Form I-765 Application for Employment Authorization with USCIS. This application may be concurrently filed with an Application to Extend/Change Nonimmigrant Status (Form I-539) and, provided the H-4 dependent spouse meets the requirements, USCIS will grant work authorization for the same period as the H-4 extension of stay. For beneficiaries of an approved I-140 immigrant petition, USCIS will grant H-1B and H-4 extensions in three-year increments. Extensions pursuant to AC21 106(a) and (b) are granted in one-year increments until a decision is made on the pending labor certification and/or I-140. Along with the filing fee, the applicant will also need to submit evidence that he or she is in valid H-4 status and that the H-1B principal nonimmigrant is also currently in valid H-1B status. The qualified H-4 dependent spouse would be authorized to accept employment upon approval of the I-765 and receipt of the Employment Authorization Document (“EAD”).

This ne rule does not provide any new benefit to the H-4 spouse, but rather shortens the delay before he or she obtains work authorization in conjunction with filing an Application for Permanent Residence (Form I-485) when an immigrant visa finally becomes available. In limiting employment eligibility to this narrow class of H-1B dependent spouses, DHS focuses on the INA’s explicit authorization of “dual intent” for H-1B nonimmigrants (INA 214(h)) and Congress’s recognition in passing AC21 of the need to address long delays workers face in the process of obtaining lawful permanent resident status.DHS requires an approved I-140 to reduce the risk of frivolous labor certifications and filing of immigrant visa petitions for the primary purpose of making an H-4 dependent spouse eligible for employment authorization. The I-140 approval proves in most cases that the H-1B nonimmigrant is eligible for the underlying immigrant classification and adjustment to lawful permanent resident status once an immigrant visa becomes available. In permitting work authorization for dependent spouses of H-1B nonimmigrants granted a 7th year H-1B extension pursuant to AC21, DHS recognizes that such cases demonstrate a significant track record of compliance with DHS regulations by the foreign worker and employer through successfully applying for and receiving at least one H-1B extension.

After announcing the proposed rule on May 12, 2014, DHS received nearly 13,000 comments during the 60-day comment period. Approximately 85 percent of the commenters supported extending work authorization to this class of H-4 dependents. Some commenters requested that DHS expand the rule to grant H-4 dependent spouses of H nonimmigrants in classifications other than H-1B. DHS declines to expand the new rule further at this time but may considering expansion of H-4 employment eligibility in the future as part of an incremental approach. The success (or failure) in the implementation of DHS’s new rule will undoubtedly influence the likelihood of future expansions of work authorization to dependents so it is vital that we remain vigilant in our efforts to avoid fraud and misrepresentation in our practice.