Employment Authorization for Certain H-4 Dependents – Analysis of Proposed Rule

Last week we reported on the announcement of the proposed rule which would allow certain H-4 dependent spouses to apply for and obtain work authorization.     Our article generated tremendous interest and feedback from clients and readers but at that time we did not have the actual proposed rule so we could not answer any specific questions about the details and the mechanics of the process, if or when, it becomes part of the regulations.     The text of proposed rule has been published in the Federal Register and now we are able to provide more details and analysis of the proposal.

Proposal for Employment Authorization for Certain H-4 Dependent Spouses

First, we should highlight and reiterate that at this point this is only a proposed rule.     Until and unless this rule becomes part of the relevant regulations, there would be no framework and possibility for H-4 spouses to apply for work authorization.

Proposed Rule.   DHS is proposing to allow employment authorization to certain H–4 dependent spouses of principal H–1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment.  Eligible H-4 spouses would spouses of H–1B nonimmigrants if the H–1B nonimmigrants are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I–140) or have been granted an extension of their authorized period of admission in the United States under the section 106(a) and (b) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21).    Section 106(a) and 106(b) of AC21 allow H-1B status extension of the H-1B nonimmigrant is the beneficiary of a PERM Labor Certification or an I-140 petition which has been pending for more than 365 days.

Rationale Behind the Proposed Rule.   By proposing employment authorization for certain H-4 spouses,  DHS believes that this proposal would further encourage H–1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents, to the detriment of their U.S. employer, because their H–4 nonimmigrant spouses are unable to obtain work authorization. This proposal would also remove the disincentive for many H–1B families to start the immigrant process due to the lengthy waiting periods associated with acquiring status as a lawful permanent resident of the United States.

H-4 Children Not Included.   It should be noted that the proposed rule explicitly states that H-4 dependent children will not be eligible for EAD under this proposed rule.

Mechanics of the Proposed H-4 Spouse EAD Application Process

The proposed rule would add eligible H-4 spouses to the list of nonimmigrants eligible to apply for an employment authorization document (EAD).    The application will be filed using the current Form I-765, together with filing fees, photos and supporting documents to establish eligibility for this new class of EAD.

EAD Validity and Extensions.   As with most other EAD classes, employment would be authorized only after the EAD has been approved and only during the validity of the approved EAD document.    The proposed rule mentions that USCIS is considering that such EADs will be issued with validity of up to two years, recognizing that even if USCIS were to issue a longer EAD validity period, it cannot exceed the applicant H-4 spouse’s H-4 status validity period.      Extensions can be filed up to 120 days in advance of expiration of the current EAD term (and assuming continuing H-4 status and extension eligibility) and EAD extensions can be (and perhaps should be) filed together with H-4 status extensions.

Documentation of Eligibility.   Since the EADs under this proposed rule would be issued only to a limited set of H-4 spouses, the EAD application would require enhanced documentation to show eligibility.    The proposed rule mentions that in addition to the application form, fee and required passport photos, the EAD application would seek evidence that the H-1B nonimmigrant spouse is beneficiary of an approved I-140 petition or has PERM Labor Certification or I-140 petition filed more than 365 days prior; in addition to evidence of the applicant’s H-4 status validity and duration.

Rulemaking Process Timeline – When Would This Rule Become Effective?

The proposed rule is now subject to public review and comment.  This comment period is scheduled to end on July 11, 2014 (see the rule text for information on how you can submit comments to this proposed rule – anyone can do so).    Once the comment period closes, DHS would review the comments and either revise the rule in response to concerns or seek to publish a final rule.     The final rule, once published, will have a future effective date.

At this time it is not clear if or when this rule would become effective — but it is unlikely that H-4 spouses would be able to file EADs before the summer’s end.    Please stay tuned to our website or newsletter for more updates on the timeline and the effective date for this rule over the next couple of months.

Conclusion

We welcome DHS’s publication of the proposed rule and we believe that many eligible 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 again caution that these are only the proposed (and not the final) rules.     Our office will monitor this process over the next weeks and provide additional updates, including estimates and actual dates of when such EAD applications can be filed.

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.