USCIS Proposes Rules Allowing Employment Authorization to Certain H-4 Spouses

Over the past few weeks (and months, really), there has been some chatter about a possible change in the regulations to allow certain H-4 spouses to apply for and obtain work authorization.   In a press release today, the Department of Homeland Security (DHS) has announced that the proposed rules are to be published for review and comment very soon.     Under one of the proposed rules, H-4 spouses would be allowed to request employment authorization in cases where the H-1B worker spouse has already started their green card process.    Similarly, certain E-3, H-1B1 (Chile and Singapore) rules are being changed to allow such workers to continue to remain in the US.

Proposed Rule Would Allow Employment Authorization to Spouses of H-1B Workers Who Have Started Green Card Process

According to DHS, this proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

Under current rules, the H-1B work authorization given to a worker does not extend to H-4 status dependents. 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 United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (more articles on 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.

Proposed Rule Would Allow E-3, H-1B1 and CW-1 Workers More Flexibility to Remain in the U.S.

Another proposed rule change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.     It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3 (Australia),  H-1B1 (Chile or Singapore), or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Specifically, the change to the regulation would regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

Important Note:   Proposed Rules Are Not Law (Yet)

We would like to caution our clients and readers that this is only the initial step in the process of the change in the rules.   These are only the proposed rules.  The proposed notices will be published soon (we will provide an update once they are) for the public review and comment period.   After the comment period ends, DHS will review and consider comments made by the public and consider whether to change the proposed rules in any way.   Only once the final rule has been released and published by DHS would these rules become the law.

As a result of this rulemaking process, it may be months before these rules go into effect.  There may be an additional period to allow USCIS to adjust their systems/processes to accept the new employment authorization benefit which is proposed to certain H-4 spouses.

Conclusion

We welcome DHS’s announcement of the proposed rules and we believe that many H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).    However, we would like to caution that these are only the proposed (and not the final) rules.     Our office will monitor this process over the next weeks and provide updates, including links and analysis of the actual proposed rules, when they are published.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.