Executive Summary

On November 20, 2014, President Obama announced the Immigration Accountability Executive Action, a series of steps directed toward reforming the United States immigration system.   As part of these initiatives, United States Citizenship and Immigration Services (“USCIS”) Director León Rodríguez announced today that the Department of Homeland Security (“DHS”) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrant workers pursuing employment-based lawful permanent residence.

H-4 Eligibility

Until now, spouses of H-1B nonimmigrant workers holding H-4 status were prohibited from working in the United States.  This prohibition had a significant impact, as H-1B workers often wait years for immigrant visa numbers during which time their H-4 spouses were prevented from engaging in employment.  On May 12, 2014, DHS released a proposed rule to amend the existing regulations and allow certain H-4 dependent spouses to obtain work authorization.  After a period of public comment, the final rule is scheduled to be published in the Federal Register tomorrow.

Pursuant to this final rule, beginning May 26, 2015, an H-4 dependent spouse will be eligible for employment authorization if the principal H-1B worker:

  • Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Has been granted 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.  These sections allow for an extension of H-1B status beyond the typical six-year limit where the H-1B worker has reached a certain point in the permanent residency process.

H-4 nonimmigrant spouses who meet these eligibility criteria may apply for employment authorization by filing Form I-765, Application for Employment Authorization with the required $380 filing fee and supporting evidence.  USCIS will begin accepting these applications May 26, 2015, and, where approved, the H-4 dependent spouse may begin working in the United States upon receipt of the Form I-766, Employment Authorization Document.

Practical Takeaways

As the number of individuals eligible to apply for employment authorization under this rule is estimated to be as high as 179,600 in the first year and 55,000 annually thereafter, employers of H-1B nonimmigrants will likely be receiving inquiries on this issue.