June 2, 2014

On May 12, 2014, the U.S. Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would make certain H-4 dependent spouses eligible to apply for employment authorization, if the H1B principal is the beneficiary of an approved I-140 petition, or if the H1B principal has had their status extended beyond the 6-year limit pursuant to AC21, the American Competitiveness in the Twenty First Century Act.

The proposed H-4 work authorization rule has no effective date as of this time, and the proposal is still subject to a 60-day public comment period, ending July 11, 2014. Once the comment period ends, DHS will take however much time they need to review and consider any comments submitted before issuing a final rule. Only the final rule will contain the date of implementation, and publication of a final rule is still some months away.

For now, all H-4 spouses continue to be ineligible for employment authorization, so look for more news on this front.

Once there is a final rule and after it has been implemented, if the rule does not change substantially, then to obtain the Employment Authorization Document under the terms of the proposed rule, H-4 spouses will need to submit Form I-765 with evidence of the H-1B principal worker’s currently valid status, and qualifying approved I-140 petition and/or approval of post sixth-year H-1B extension. If the I-765 application is approved, the H-4 holder would receive an EAD valid for up to two years. Processing of the I-765 application can take up to 120 days, so even after the new rule is approved and implemented, it will be a few more months before an H-4 spouse gets authorization to work in the United States. With an EAD card, the H-4 will be able to obtain a Social Security Number, and it is a List A document valid as proof of identity and work authorization for purposes of Form I-9, Employment Eligibility Verification.

The Administration hopes that making H-4 spouses of longtime H-1B workers eligible for EAD cards will help US employers retain highly skilled H-1B workers, in the face of very long waits for lawful permanent residence. It may also encourage entry into the United States of those H-4 eligible spouses who have chosen to remain abroad and separated from their H-1B spouses in order to pursue their own careers outside of the United States, because they would not be eligible to work if they came here. We can only hope for swift issuance of a final rule with an implementation date in the near future.

Contact us if you would like more information about the H-4 Work Authorization proposal.