In a significant development in federal immigration reform, USCIS announced today that, effective later this spring, a new rule will provide spouses of some H-1B status holders with authorization to work in the United States. This is the initial step in a series of anticipated future reforms to American business immigration rules that USCIS previewed last November in conjunction with the President’s broader executive actions providing work authorization to millions of undocumented individuals. USCIS is responsible for adjudicating business immigration applications and announced through a press release that eligible spouses of H-1B status holders in the United States can begin requesting work authorization on and after May 26, 2015. These dependent spouses currently hold “H-4” status, which does not allow them to work without separate work-authorization sponsorship through a U.S. employer of their own. 

Under the new rule, current H-4 holders eligible for their own work authorization include individuals whose spouses have made significant progress towards, but have not yet received permanent residency in the United States, such as:

• The principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Employees who have been granted H-1B status beyond the six-year limitation under the American Competitiveness in the Twenty First Century Act of 2000, or AC21.

An approved I-140 visa petition is one step toward permanent residency and allows individuals to seek permanent residence by applying for “admission” to the United States. However, procedural delays (lengthy backlogs and small-country quotas) force many individuals to wait for years after I-140 approval before becoming eligible to even apply for admission. Legislation passed over a decade ago authorized H-1B status holders with either a pending or approved labor certification or I-140 visa petition, in some circumstances, to extend their H-1B status beyond six years (AC21 extensions). This law had no impact on dependent spouses, though, and the rule announced today will bring American immigration rules more in line with the laws of other Western countries.

This new policy will better integrate the spouses of many existing H-1B status holders, who are often well-qualified professionals in their own right, into the U.S. economy. It is also expected to attract more dual-income foreign nationals to live and work in the United States and thus expand the pool of highly skilled workers available to U.S. employers. Because the new avenue to work authorization will not be tied to a specific employer, both employees and U.S. employers will benefit from the “portable” nature of such employment authorization.

To apply for such authorization, eligible H-4 dependent spouses will be required to file Form I-765, Application for Employment Authorization, with supporting evidence of their eligibility and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will only begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and an H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years.