The Department of Homeland Security (DHS) recently announced two proposed regulations that would extend employment authorization benefits to additional nonimmigrant categories. The proposed rules aim to attract and retain new businesses, investment and highly-skilled workers in the United States. The new provisions will be published as proposed rules in the Federal Register with opportunity for public comment. Click here to view the DHS Announcement.
Proposed Rule to Extend Employment Authorization to Certain H-4 Spouses
Under existing regulations, spouses of H-1B visa holders are not eligible to work in the U.S. The proposed rule will amend the existing regulations to allow these H-4 spouses to request employment authorization when the principal H-1B worker has reached a certain point in the employment-based green card process.
H-4 spouses who will be eligible to request employment authorization under the proposed rule include:
- Spouses of H-1B workers who are beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; and
- Spouses of H-1B workers who have been granted a H-1B extension beyond the six-year limit under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The AC21 rules permit extensions beyond the six-year limit for H-1B employees who (a) have filed a labor certification that has been pending for at least 365 days or (b) have an approved Form I-140, Immigrant Petition in a backlogged category.
Under the current rules, H-4 spouses are not permitted to apply for work authorization until the H-1B employee reaches the last stage of the employment-based green card process. For H-1B employees in backlogged categories, the wait for the spouse to be able to request work authorization can be many years. The new proposed rule would significantly benefit H-1B holders from backlogged categories and their spouses by allowing the H-4 spouse to apply for work authorization much earlier in the process.
Proposed Rule to Ease Extension Process for E-3 and H-1B1 Workers
This proposed rule provides an automatic extension of work authorization upon the filing of status extensions for E-3 professionals from Australia, H-1B1 specialty occupation professionals from Chile or Singapore, and CW-1 transitional workers from the Commonwealth of the Northern Mariana Islands. Under current regulations, E-3, H-1B1, and CW-1 holders whose extension petitions have been filed are not permitted to continue working after their status expires. The proposed rule would bring workers in E-3, H-1B1 and CW-1 status in line with other nonimmigrant categories, including H-1B, L-1A, L-1B, E-1, and E-2, who may continue to work while their extension petitions are in process. The new rule would ease the burden on employers for cases where E-3, H-1B1 and CW-1 workers have extensions that are subject to long processing times or a Request for Evidence.
Under the proposed rule, existing regulations would be changed to allow E-3, H-1B1, and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their I-94 cards, as long as a timely-filed extension request remains pending.