United States: DHS Proposes Rule For H-4 Employment Authorization

The U.S. Department of Homeland Security (DHS) has published a proposed rule in the Federal Register that would make certain H-4 dependent spouses eligible to apply for employment authorization. The proposal is now subject to a 60-day public comment period. When the comment period is over, DHS will review and consider any comments submitted before issuing a final rule.

This appears to be a positive development, but the time frame for implementation is unknown. It will be at least 60 days and likely several more months after the comment period before the new rule goes into effect. In the meantime, H-4s continue to be ineligible for employment unless and until the DHS proposal is finalized.

If enacted as proposed in the Federal Register, the rule will permit certain H-4 visa holders to apply for the Employment Authorization Document (EAD) on form I-765. Two groups of H-4 visa holders would be eligible: (1) H-4 spouses of H-1B workers who are the beneficiaries of approved I-140 petitions and (2) H-4 spouses of H-1B workers who have had their H-1B status extended beyond the six-year limit under the provisions of the American Competiveness in the Twenty First Century Act (AC21). This group includes beneficiaries of PERM or I-140 petitions made 365 days prior, or those with approved PERM and I-140 petitions with no visa number available.

To obtain the EAD document, H-4 spouses would submit form I-765 with evidence of the H-1B worker's qualifying I-140 petition and/or post sixth-year H-1B extension. If approved, the H-4 holder would receive an EAD valid for up to two years. Processing of the I-765 application can take up to 120 days, so even after the new rule is approved and implemented, additional time will be required before an H-4 spouse is authorized to work in the United States. With an EAD, the H-4 spouse will be able to obtain a Social Security Number.

The Obama administration hopes that giving work permits to H-4 spouses of H-1B workers will result in the retention of highly skilled H-1B workers in the United States, despite long waits for legal permanent residence, as well as encourage the entry into the United States of H-4 eligible spouses who had remained separated from their H-1B spouses in order to pursue their own research and technical careers outside of the United States.

It is estimated that this new rule could benefit almost 100,000 H-4 visa holders this year and around 30,000 annually in the coming years. We will provide additional updates when the comment period ends.

If you have any questions about thisAlert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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