U.S. Department of Homeland Security (DHS) announced a proposed rule today that, if ultimately promulgated as written, would allow H-4 dependent spouses of certain principal H-1B workers to request U.S. employment authorization.

As described by DHS in its announcement: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering, or computer programming. Frequently, employers will sponsor H-1B workers for U.S. lawful permanent residence. As part of the lawful permanent residence process, the employer will file a Form I-140, Immigrant Petition for Alien Worker, on behalf of the worker. Lawful permanent residents are issued “green cards” as evidence of their status and are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the U.S. under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

The Notice of Proposed Rulemaking in this regard will soon be published in the Federal Register. DHS encourages the public to comment on the proposed rule through www.regulations.gov. All public comments will be considered before the final rule is published and goes into effect.

We are excited about the possibility of such proposed rule and will keep you posted of any developments.