USCIS Publishes Rule to Permit Employment Authorization for Some H-4 Spouses

Morgan Lewis

The rule creates employment eligibility for H-4 spouses where the H-1B principal is subject to I-140 backlogs or is AC-21 eligible.

In a release issued earlier today, U.S. Citizenship and Immigration Services (USCIS) announced that after three years of agency consideration and vetting, it will permit the H-4 spouses of certain H-1B principal nonimmigrants to receive employment authorization in the United States.

The H-1B visa is available to individuals in a specialty occupation, typically highly skilled individuals who are working in a field that requires a bachelor’s degree or the equivalent. H-1B status allows the principal H-1B individual to work for a sponsoring employer, however, until now, an accompanying foreign spouse in H-4 status was not eligible for employment authorization.

The Obama administration intends this new rule to provide relief to the families of H-1B nonimmigrants and to indirectly aid employers that often struggle to retain their highly skilled workers during H-1B employees’ often lengthy wait to become lawful permanent residents.

This is not a blanket employment authorization program for H-4 spouses.

Applications for employment authorization under this new rule will be accepted by USCIS starting May 26, which is 90 days after the new rule’s publication in the Federal Register.

Who will benefit?

The rule will benefit H-4 spouses only where

  • the principal H-1B is the beneficiary of an approved I-140 immigrant visa petition for which an immigrant visa number is not available, or
  • the principal H-1B is eligible for a post-sixth-year extension of H-1B status pursuant to the American Competitiveness in the 21st Century Act (AC-21).

The first group of eligible applicants is H-4 dependent spouses of H-1B principal nonimmigrants who are beneficiaries of an approved I-140 petition, typically based on “green card” sponsorship by an employer. Depending on the I-140 immigrant visa classification (e.g., EB-1, EB-2, or EB-3) and the birth country of the I-140 beneficiary or spouse, it may not be possible for the beneficiary of an approved I-140 petition to proceed immediately to the final stage of the “green card” process and apply for adjustment of status to lawful permanent resident. In particular, there are significant backlogs for persons from India and China, who must often wait years for an immigrant visa number to become available. While the H-1B principal may remain employment authorized during this waiting period by virtue of his or her H-1B status, the accompanying spouse who is in H-4 status is currently ineligible to work during this period in which an immigrant visa number is not available. The rule announced today would change that and enable the H-4 spouse to apply for employment authorization during this backlog waiting period.

The second group of eligible applicants is H-4 dependent spouses of H-1B principal nonimmigrants who are eligible for post-sixth-year extensions of H-1B status based on AC-21. Typically, H-1B status is limited to a total of six years of combined H-1B or L-1 nonimmigrant status. An exception exists for individuals who have reached certain milestones in the “green card” process that may or may not include approval of an I-140 petition. The rule announced today would allow the H-4 spouse of an H-1B principal nonimmigrant who is eligible for post-sixth-year AC-21 benefits to apply for employment authorization.

Accordingly, this rule differs from similar rules that allow L-2 and E-2 spouses to apply for employment authorization simply by virtue of their nonimmigrant status.

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

What does this mean for employers?

Although this rule does not directly affect employers, it is likely to have an indirect benefit by increasing the chances that valued H-1B workers will choose to remain in the United States during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families. In addition, 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. Many of these individuals are likely to be highly skilled.

In terms of employer policies, companies that hire H-1B workers may see an increased eagerness among H-1B employees who are subject to the immigrant visa backlogs to initiate the “green card” process immediately to qualify their spouses for H-4 employment authorization as quickly as possible. The same companies may also want to consider internal policies regarding cost responsibility for H-4 employment authorization applications. Employers are not required to cover the expenses related to H-4 employment authorization.

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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