USCIS recently proposed a new regulation (8 CFR §214.2(h)(9)(iv)) which would authorize work for nonimmigrant spouses who hold H-4 status and meet certain criteria. This rule on employment authorization for certain H-4 spouses has garnered significant attention in the media. The fundamental elements this new regulation are the following:
- The principal H-1B spouse is the actual beneficiary of an approved visa petition under form I-140
- The H-1B nonimmigrant’s period of stay is permitted under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000
The proposal would also provide a on-year period of H-1B status past the initial six-year limitation if the H-1B nonimmigrant is the actual beneficiary of an approved labor certification or an I-140 petition that has been submitted and has been pending for a minimum of 365 days prior to the end of the sixth year of H-1B Status.
Employment Authorization for Certain H-4 Dependent Spouses
Even is a spouse of an approved H-1B status holder would need to meet certain eligibility requirements. They would be required to apply for and receive an employment authorization document (EAD) which is obtained by filling out Form I-765. They would also be required to pay all necessary fees which are applicable to their petitions.
Purpose of Proposed Rule on Employment Authorization for Certain H-4 Spouses
In a statement from USCIS, the purpose of the rule on employment authorization for certain H-4 spouses currently being proposed is to:
“encourage H-1B skilled workers to remain in the United States, continue contributing tothe U.S. economy, and not abandon their efforts to become lawful permanent residents, tothe detriment of their U.S.employer, because their H-4 nonimmigrant spouses are unable to obtain work authorization.”
USCIS continues to expand on this initial statement by declaring that the proposed rule will, “foster the goals of attracting and retaining high skilled foreign workers and minimizing disruption to U.S. businesses…”
Response to USICS from the Legal Community
Although the proposed rule is being seen generally as a positive by the general public, leaders in the legal community have voiced their opinion that the proposed rule still requires revisions. Recently, the American Immigration Lawyers Association (AILA) has released an official proposal to USCIS which outlines revisions the organization feels should be implemented to USCIS’s proposed rule.
According to AILA’s recent release, in order to actually achieve the goals of the proposed rule, revisions should be made to allow work authorization to all H-4 dependents beginning at the time of admission or alternatively, to those who have expressed a serious intention to make the U.S. their permanent home. AILA’s official remarks go on to state that H-4 spouses should not be managed differently from spouses of E-1, E-2, and E-3 of L-1 nonimmigrants who could apply for employment authorization upon admission to the U.S. holding such status.
AILA’s opinion on USCIS’s proposed rule is ultimately clarified by highlighting that although the proposed rule is beneficial, the actual goal of retaining highly educated workers who possess special skills is more effectively served through expanding EAD eligibility to as many H-4 nonimmigrants as possible.