Proposal for H-4 Spouse for EAD in Limited Circumstances

At the Murthy Law Firm, we have been receiving inquiries about the possibility of employment authorization for H-4 dependents. These questions arise out of the appearance of a proposal that is pending review at the Office of Management and Budget (OMB). Following is an explanation of the status of the proposal to allow H-4 spouses to obtain possible employment authorization documents (EADs).

Regulatory Process: OMB Review may be Lengthy

The topic of potential EAD eligibility for certain foreign nationals in H-4 status has gained attention over the past few years, due to the appearance of a proposal on the Office of Management and Budget website. As reflected on the OMB website, the proposal is undergoing Executive Order (EO) 12866 Regulatory Review.

EO 12866 review refers to a review of draft and proposed final regulations by the Office of Information and Regulatory Affairs (OIRA), which is part of OMB. This review must be completed before the proposed regulation can move forward.

More information on this review, including the possibility of extensions to the 90-day timeframe for completion, can be found in this FAQ. Completion of this review is only one step in the regulatory process, as explained below.

Regulatory Process: Publication and Comment

Once the OMB completes the review, if the proposal is to move forward, it must undergo publication of the proposed regulatory changes in the Federal Register. This publication will be followed by a public comment period. More detail on these steps is available on the OMB WebSite. Thus, there are a number of additional, and potentially lengthy, steps required in the regulatory process.

As an indication of the time that such changes can take, this proposal was on the unified agenda in fall and spring 2011. The agenda includes items of priority for planned regulatory activities. It appears that there has been some progress in this matter, but MurthyDotCom readers are cautioned against assumptions that any changes will occur quickly.

Limited Data in Abstract of H-4 Spouse Obtaining EAD

The exact details of the proposal for allowing EADs for those in H-4 status are not public. The abstract provided when the matter was placed on the agenda contained key limitations.

Primary Must Have Extended H1B Status Beyond 6 Years

That abstract indicated that the proposed EAD eligibility would be limited to H-4s whose H1B primary spouses held status extended beyond the six-year limit under the American Competitiveness in the 21st Century Act (AC21). Thus, the stated intention is to limit the H-4 EAD to situations in which the H1B primary applicant has initiated the permanent residence (green card) process and extended H1B status on that basis.

Conclusion

We are aware that many individuals in H-4 status would welcome the opportunity to obtain the EAD, so that s/he would be allowed to work freely in the United States while awaiting the lengthy green card process. The developments discussed above have created some renewed excitement and hope in this area. However, as mentioned above, the regulatory process can be long and complex, with many steps and potential changes along the way. We will continue to follow this important topic, to update MurthyDotCom readers on further important developments.

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