In a welcome regulatory change, the Department of Homeland Security (DHS) has proposed a regulation that will allow H-4 spouses of certain H-1B foreign nationals to apply for work authorization. The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment. Specifically, spouses in H-4 status would be able to apply for work authorization only if: 1) the H-1B spouse is the beneficiary of an approved I-140 petition, and visa numbers are currently unavailable in the preference category; or 2) the H-1B spouse is the beneficiary of a labor certification that was filed 365 or more days prior to reaching the end of the sixth year of H-1B status. Dependent spouses of H-1B workers who are not in the process of seeking permanent residence through employment will continue to be ineligible for employment authorization, as will the children of H-1B workers in H-4 status.
DHS will accept comments on the regulation from the public through mid-July 2014. After the comment period closes, DHS will consider the feedback and may make some changes to the regulation. After further approvals are received, the regulation will be published and an implementation date will be announced. Once the rule is implemented, we can assist you in identifying H-4 spouses who may be eligible to file employment authorization applications. We will keep you apprised once further updates become available.