On May 6, 2014, the U.S. Department of Homeland Security (DHS) officially announced that the United States will offer employment authorization to H-4 spouses of H-1B specialty occupation workers, under certain conditions.
Historically, H-4 spouses of H-1B workers have not had the right to work in the United States, although they have been able to legally reside in the United States and enroll in U.S. schools during the period of H-1B approval. Many spouses in H-4 status become eligible to apply for U.S. employment authorization when the H-1B principal is sponsored for Lawful Permanent Resident status by a U.S. employer. However, due to quotas restricting the number of employment-based green cards issued each year, many H-4 spouses (especially from India and China) must wait for many years after such sponsorship before they can apply for employment authorization. The new H-4 provisions appear targeted to benefit these individuals.
Eligibility for H-4 employment authorization is tied to the principal H-1B worker. H-4 spouses will be eligible to apply for employment authorization if their H-1B worker husband or wife:
Is the beneficiary of an approved I-140 filed by a U.S. employer; or
Has been granted an extension of H-1B status beyond the six-year limit based on the American Competitiveness in the Twenty-first Century Act of 2000 (Public Law 106-313).
H-4 employment authorization application fees, forms and processes will be clarified through proposed regulations, which DHS has promised to release soon. As of now, it is not clear when DHS will begin receiving and processing such applications.
This new opportunity for H-4 spouses represents DHS’s recognition of the potential value that spouses of skilled foreign workers bring to the U.S. economy. Many spouses in H-4 status are themselves professionals or would-be entrepreneurs, but are unduly prevented from entering the U.S. workforce due to visa quota backlogs. DHS Deputy Secretary Alejandro Mayorkas has called the new H-4 employment rules an effort to “retain and attract world-class talent … [to] ensure [the United States] do[es] not cede the upper hand to other countries competing for the same talent.”
Click here to read a copy of DHS’s press release regarding H-4 employment authorization.