The Department of Homeland Security (DHS) took another positive step toward finalizing its proposed rule to extend employment authorization to certain H-4 dependent spouses that it had announced in May 2014. Last week, DHS forwarded this rule to the Office of Management and Budget (OMB) for review and consideration with no deadline. The OMB may take two or more months to complete their review. Once the OMB finalizes the rule, DHS will publish the final rule in the Federal Register, but until it does so it is unclear when this rule might be finalized. Further, implementation of this rule may be delayed due to other immigrant programs that were announced by President Obama as part of his executive actions, such as the extension of the Deferred Action for Childhood Arrivals (DACA) and the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
The proposed rule would extend employment authorization to H-4 spouses if the principal H-1B nonimmigrant has either an approved Form I-140, Immigrant Petition for Alien Worker (step 2 of the permanent residence process), or has been granted an extension of their H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (commonly referred to as AC21). Coverage would not extend to H-4 children or H-4 dependent spouses of H-2A/H-2B or H-3 nonimmigrants. 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 three months to process. 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.