Important Proposed Changes to the H-1B Visa


[author: Jenny Baranko]

On May 6th, the Department of Homeland Security (DHS) announced two proposed rule changes in hopes to attract new investment and business to the United States.  The proposals would extend employment authorization to spouses of certain H-1B workers and would remove obstacles to highly skilled workers remaining in the U.S.

Employment Authorization for Spouses of H-1B Workers

Under current regulations, employment authorization is not extended to dependents (known as H-4 nonimmigrants) of H-1B nonimmigrant workers.  The proposed rule change would allow H-4 dependent spouses to seek employment authorization if the H-1B worker meets the following criteria:

  • Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Has been granted an extension of their authorized period of stay in the U.S. under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)

Removal of Certain Obstacles for Highly Skilled Workers

The second proposal would enhance opportunities for certain groups of highly skilled workers by removing obstacles to their remaining in the U.S.

Specifically, the new proposal would do the following:

  • 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.

DHS is accepting public comments on the proposed rules which will be considered before the final rules are published.  For more information, please visit



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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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