On 25 February 2015, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS)published its final rule, effective 26 May 2015, extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident (LPR) status, who meet certain conditions related to that LPR process. This is a significant change, as H-4 spouses previously were not eligible to work in the United States at all. The change in the regulations seeks to attract and retain highly skilled foreign workers by alleviating personal and economic strains during the transition to LPR status. However, please note that this employment authorization does not extend to all H-4 spouses.

Background

The new DHS rule is part of ongoing immigration reform measures pursuant to the executive actions on immigration announced by President Obama in November 2014. The expansion of employment authorization eligibility for certain H-4 dependent spouses is one of several administrative initiatives to facilitate the hiring and retention of highly skilled workers by U.S. businesses.

DHS expects the change to reduce the burden for H-1B immigrants and their families during application for LPR status and hopes the change will incentivize H-1B nonimmigrants to remain in the United States. The new rule will also help minimize disruptions to U.S. businesses employing skilled H-1B nonimmigrants. The change will bring U.S. immigration policies for highly skilled workers closer to those of other countries seeking to attract such workers. According to USCIS, the number of H-4 individuals eligible to apply for employment authorization under the rule could be up to 55,000 annually.

Eligibility

Eligible individuals include only H-4 dependent spouses of H-1B nonimmigrants who

  • are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker (irrespective of the preference category); or
  • have been granted an extension of H-1B status beyond the six-year limit under section 106(a) or (b) of the American Competitiveness in the Twenty-First Century Act of 2000 (i.e., H-1B workers on whose behalf a Program Electronic Review Management Labor Certification application or an I-140 immigrant petition has been filed more than 365 days prior to the six-year limit).

Under the new rule, eligible H-4 dependent spouses will have to file Form I-765, Application for Employment Authorization, with relevant supporting evidence and a required US$380 fee. Once USCIS approves the submitted Form I-765, the H-4 dependent spouse will receive an Employment Authorization Document and may begin working in the United States.

The rule will be effective 26 May 2015.