On February 24, 2015, the Department of Homeland Security announced changes to the regulations governing employment authorization. Under the new regulations, spouses of certain H-1B workers will become eligible for employment authorization, a change long called for by H-1B workers and their employers. H-1B workers are skilled professionals, including financial analysts, physicians, IT consultants and engineers, that businesses desire to retain. Granting their spouses employment authorization in H-4 status will help employers keep the H-1B workers by mitigating the risk of the worker leaving the United States because his or her spouse cannot work.

Only certain H-4 spouses will be eligible for employment authorization under these changes, specifically those married to H-1B workers who are pursuing employer-sponsored permanent residency. Eligibility is determined by showing that the H-1B worker has either (1) received an approved I-140 (an application that is part of the permanent residency process) or (2) been granted H-1B status for more than six years based on the pursuit of permanent residency.

This revision to the regulations, which takes effect May 26, 2015, implements some of the immigration changes President Obama announced in his November 2014 executive order. Those seeking work authorization under the new regulations should not file an application until then. In the meantime, employers can identify the spouses of any of their H-1B employees who will be eligible for this benefit.