The Department of Homeland Security (DHS) proposed extending employment authorization to certain H- 4 dependent spouses in an effort to alleviate the economic burdens experienced by families in H status that face long wait periods in the permanent residence process. The Notice of Proposed Rulemaking was published in the May 12, 2014 Federal Register and opens a comment period for sixty days through July 11, 2014. During this period, DHS will accept any comments and arguments for and against the proposed rule. The Notice of Proposed Rulemaking does not mean that this rule will eventually become law, but only that the DHS is proposing to do so. If the rule is ultimately approved, we estimate that qualifying H-4 dependents will be able to apply for employment authorization at some point in early 2015.

The proposed rule limits employment authorization to H-4 spouses of H-1B nonimmigrants who have either an approved Form I-140, Immigrant Petition for Alien Worker (step 2 of the permanent residence process), or have been granted an extension of their H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). These are one-year extensions that are granted to an individual beyond the six-year H-1B maximum period of authorized stay when a labor certification (step 1 of the permanent residence process, aka PERM Application) or a Form I-140 has been filed on their behalf more than 365 days prior to the six-year maximum. An AC21 extension is only approvable when the labor certification, Form I-140 or immigrant visa application/Form I-485, Application to Register Permanent Residence of Adjust Status have not been denied or revoked. Neither H-4 children nor H-4 dependent spouses of H-2A/H-2B or H-3 nonimmigrants would be eligible for employment authorization under this proposed rule.

An eligible H-4 dependent spouse would not automatically receive employment authorization incident to their status, but would have to apply for an Employment Authorization Document (EAD) card via the Form I-765, Application for Employment Authorization. This Form is submitted with fee to the U.S. Citizenship and Immigration Services (USCIS) and generally takes two to three months to process. This application process is similar to that of dependent spouses of E-1, E-2 and L-1 nonimmigrants that, under current law, are already authorized to apply for employment authorization. The H-4 dependent spouse would not be eligible to work until he/she has the EAD card and it would be the responsibility of the spouse to timely file for a new EAD card prior to the card’s expiration. The proposed rule does not provide a specific period of employment authorization, but instead notes that the length of the authorization would be within USCIS’ discretion. Currently, a two-year period is being proposed, however, whether the period is one or two years, the actual validity of the EAD card would not exceed the H-4 spouse’s period of authorized stay as indicated on their Form I-94.

H-1B employers and families have long awaited this rule and we are pleased that DHS has decided to take action. We will provide information on any further updates relating to this rule as soon as they are released.