USCIS Issues Final Rule Providing Employment Authorization to H-1B Spouses

20 March 2015 Labor & Employment Law Perspectives Blog

On February 25, the United States Department of Homeland Security (DHS) issued final regulations making H-4 dependent spouse status holders eligible for an employment authorization document (EAD) under two circumstances: 1) where the H-1B principal is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker or 2) where the H-1B principle has been granted status pursuant to the 7th year extension provisions of Section 106(a) of the American Competitiveness in the 21st Century Act (AC21). The rule does not extend eligibility to H-4 dependents who are children. Eligible persons may file Form I-765, Application for Employment Authorization, concurrently with Form I-539, Application to Extend/Change Nonimmigrant Status. The effective date and of the rule is May 26, 2015, which will be the first day DHS will accept H-4 EAD applications. The rule was promulgated in 80 FR 10284.

H-4 nonimmigrant status is conferred on foreign nationals who are the dependent spouses of H-1B nonimmigrant status holders. The H-1B program allows United States employers to temporarily hire foreign nationals to fill specialty occupations – those requiring theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree as minimum for entry into the occupation. H-4 status can be conferred upon the spouse and under 21 year old unmarried children of the H-1B holder.

DHS found that the lack of employment authorization for H-4 dependent spouses can give rise to personal and economic hardship for the families of H-1B nonimmigrants and that those hardships can increase the longer the family remains in the United States. Long delays in the employment based lawful permanent resident categories are part of the reason for the long stay of H-1B families. In order to retain these workers who are highly correlated with overall economic growth and job creation, DHS stated that it made employment authorization available to H-4 spouses to support the retention of H-1B nonimmigrants who are on the pathway to lawful permanent resident status.

This change in regulation will have a dramatic impact on the families of H-1B nonimmigrants who have been affected by the long backlog in employment based green card processing. Employees who are affected by this change of rule should begin collecting materials in preparation for the May 26 effective date.

This rule does not impact H-4 spouses whose spouses are not the beneficiary of an approved I-140 or who hold H-1B status pursuant to a 7th year extension. The rule does not extend to H-4 children.

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