By Attorneys Joseph I. Elias & Nancy E. Miller

The Department of Homeland Security (DHS) recently announced that it will be publishing new regulations permitting some H-4 spouses to obtain work authorization. The proposed regulations are expected to be published within the next few weeks and will be open for public comment. These regulations may then go into effect as soon as 60 days after publication.

DHS’s explains that its goal for the proposed rule is to enhance the United States ability to attract and permanently retain high-skilled foreign workers. DHS recognizes that many H-1B workers will forego working in the United States because their spouses are unable to obtain work authorization. Many spouses either do not qualify for their own H-1B visa, or other working visa status such as O-1 or L-1, or, the spouse has exhausted six years of H-1B and can no longer continue working. This dis-incentive to work in the United States is further exacerbated by the long-wait times for immigrant visa numbers to become available. Many H-1B workers who are waiting for their immigrant visa numbers to become available, and are eligible to extend H-1B status beyond the normal six-year cap, are unwilling to remain in the U.S. if their spouses are unable to also work. A spouse who cannot work creates financial disruptions for the H-1B worker and the H-4 spouse who is not only forced to forego additional income, but also, career advancement.

H-1B workers electing not to remain in the U.S. can cause significant disruptions to U.S. businesses that have invested time and money in foreign talent The DHS acknowledges that attracting and retaining H-1B workers who are on the path to becoming permanent residents is an important public policy goal. The DHS has therefore proposed these new regulations to address some of the obstacles that cause H-1B workers to either leave the U.S. or, never seek employment in the U.S.

The new regulations will allow certain H-4 spouses to apply for and obtain work authorization. H-4 spouses can qualify for this work authorization if they are:

H-4 nonimmigrants whose H-1B spouses are beneficiaries of an approved Form I-140; or

H-4 dependent spouses of H-1B nonimmigrants remaining in the United States with an extension of stay issued under the provisions of Sections 106(a) and (b) of American Competitiveness in the 21st Century Act (AC21). (The AC 21 provisions permit an H-1B worker to extend H-1B status beyond six years if he or she is the beneficiary of a labor certification application or an employment-based immigrant petition that has been pending for at least 365 days prior to reaching the end of the sixth year of H-1B status.)

The H-4 dependent spouses of H-2B nonimmigrants and H-3 nonimmigrants will not qualify for work authorization. Nor, will the H-4 spouses of H-1B beneficiaries for whom there are no approved immigrant visa petitionsor AC 21 extensions.

Currently, an H-4 spouse must wait to apply for work authorization when filing for adjustment of status to permanent resident. With visa number backlogs, this wait can be from several years to even decades.The proposed regulationsprovide a fast pathway for qualifying H-4 spouses to obtain work authorization. Married H-1B workers should therefore encourage their employers to begin the employment-based immigrant visa process as soon as possible in order to allow their spouses to obtain employment authorization.

For many, this requires a labor certification to be filed with the Department of Labor, then, an I-140 immigrant visa petition with the USCIS. For most employment categories, the I-140 can be approved in as fast as 15 calendar days under the USCIS’ premium processing service once the labor certification is approved. The entire process could be completed in just under a year allowing for H-4 employment authorization.

The employment authorization will also allow qualified H-4s to obtain a social security number (SSN). The SSN is usually a prerequisite for obtaining State professions licenses and certifications such as Nursing License, CPA license, dental hygienist certification, etc.
H-4 spouses who meet the above criteria should start polishing up their resumes. Once the regulations take effect, they can apply for the work authorization. They will need to very carefully document their eligibility. Failure to do so can result in application denials and loss of filing fees. Only upon receipt of the work authorization card will the H-4 be entitled to work. It is therefore prudent to retain the services of qualified immigration lawyers to assist in the process. Immigration lawyers can determine if the H-4 qualifies and ensure proper documentation of the qualifications. Immigration lawyers can also advise H-4s who do not qualify on steps that can be taken to qualify.

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