Proposed rule allowing work authorization for H-4 spouses

On May 6, 2014, the Department of Homeland Security (DHS) announced a proposed rule allowing spouses of certain H–1B workers to apply for employment authorization. Under existing regulations, H-4 spouses are not allowed to work. If this rule becomes final, these spouses of H-1 holders could apply for work authorization.

In its press release, DHS noted that, “we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

The proposed rule, would “allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.”

For an H-4 applicant to be eligible for work authorization, their H-1B spouse:

1. Must have an approved  I-140 petition; or

2. Has a labor certification case that has been pending for over 365 days and has been granted an extension of his or her H-1B status beyond the 6-year limit, under the American Competitive in the Twenty-first Century Act of 2000 (AC 21).

It is also critical that both the H-1B and H-4 visa holders be in full compliance with their existing visas. For example, if the H-1B visa holder is no longer working for the petitioner, is not working in the position or at the wage specified in the petition, or the H-4 is already working, etc., there may be problems in applying for H-4 work authorization. This is because USCIS typically checks for past compliance before granting future benefits.

There are many H-1B visa holders who are already several years into the validity period of their H-1B visa, but have not yet asked their employer to petition them for a green card. Under this proposed rule, for the H-4 spouse to be eligible to apply for work authorization the H-1B worker must have already started the process of seeking lawful permanent residence through an employer’s sponsorship. This proposed rule may be all the more reason for the H-1B visa holder to finally ask his or her employer to start the labor certification process. After all, I am sure your H-4 spouse would love to get a job, work, and help earn money for your household, rather than sitting at home.

If you are in H-4 status, and believe you may be eligible for work authorization (once this rule becomes final), seek the advice of an attorney, to evaluate your (and your H-1B spouse’s) situation, to determine compliance and eligibility.

 Note: This is now only a proposed rule. It is not yet final. At the present time, you still must wait for that rule to become final.

The proposed rule is first published in the Federal Register, the public is allowed a certain time to submit their comments, which are reviewed by DHS, and the rule would then become “final.” Only then can eligible H-4 spouses apply for work authorization.

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