As an update (to this recent posting), we clarify that USCIS recently indicated in the Fall Unified Agenda the posting of a Notice of Proposed Rulemaking in November 2018 (see RIN 1615-AC15) on this regulation.
U.S. Department of Homeland Security (DHS) has proposed to remove eligibility for employment authorization to certain H-4 dependent spouses of H-1B workers in the publication of the Proposed Rule (RIN 1514-AC15). This DHS proposal was initially expected in February 2018 but was delayed due to review of other regulatory agenda items, according to U.S. Citizenship and Immigration Services (USCIS) Director Cissna. DHS published this proposed rule in response to and in accordance with the priorities set out in the President’s “Buy American and Hire American” Executive Order. DHS anticipates that this will reduce costs of production of employment authorization cards for H-4 nonimmigrants while acknowledging that employers may incur labor turnover costs.
In 2015, DHS published a final rule, which for the first time extended eligibility for employment authorization to dependent spouses of H-1B nonimmigrant workers going through the permanent residence sponsorship process, but subject to green card backlogs. Specifically, H-4 spouses of H-1B nonimmigrant workers for whom I-140 immigrant visa petitions have been approved by USCIS but whose green card applications could not be approved due to backlogs, or those eligible for H-1B extensions because their permanent residence sponsorship was initiated at least 12 months prior to the end of their sixth year of H-1B status, became eligible for employment authorization. At the time, DHS announced that providing for this employment authorization was consistent with its mission to support U.S. employers’ drive to recruit and retain highly skilled nonimmigrant workers.
As DHS’s latest publication is only a proposed rule, it does not automatically invalidate currently valid employment authorization documents for H-4 spouses. Furthermore, even as a final rule, an effective date for cessation of validity of H-4 employment authorization cards would need to be provided by DHS. Until that time, H-4 employment authorization cards remain valid. Contact your attorney with any questions regarding employment authorization as well as Form I-9 and E-Verify compliance issues raised by this DHS proposal.