As anticipated and indicated in our " heat map" of immigration actions during the first 100 days in office, the Biden administration has withdrawn a rule proposed by the Trump administration that would have eliminated work authorization for the H-4 spouses of certain H-1B visa holders. The decision to withdraw the rule will allow the H-4 dependent spouse of an H-1B nonimmigrant who:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted an extension of their H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21)
to continue to file Form I-765, Application for Employment Authorization for an Employment Authorization Document (EAD). Under AC21 § 106, an H-1B nonimmigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the nonimmigrant's behalf. According to a Cato Institute analysis published last summer, an estimated 90,000 H-4 spouses, some 87 percent of whom are Indian nationals, hold work authorization under the Obama-era regulation. The Trump administration had signaled shortly after the 2017 inauguration that it was planning to do away with H-4 work authorization, thus sowing seeds of uncertainty and fear within the Indian nonimmigrant community. The swift action by the Biden administration has put those fears to rest for now.
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe - Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2020. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.