Proposed Rule for H-4 Employment Authorization Published

On May 12, 2014, the U.S. Department of Homeland Security (DHS) published a proposed regulatory change in the Federal Register, which would make certain H-4 dependent spouses eligible to apply for employment authorization. This proposal is now subject to a sixty-day public comment period, after which the DHS will review and consider any comments submitted. While there is reason for optimism regarding this proposed rule, H-4s continue to be ineligible for employment unless and until the DHS proposal is finalized.

Proposal Available for Public Review and Comment

In order to implement a regulatory change, the proposed rule typically must be subject to a public comment period. To that end, the DHS proposed rule regarding H-4 employment authorization is open to public comments through July 11, 2014. Stakeholders interested in commenting on this proposal are encouraged to do so by following the instructions provided on the Federal Register website.

Two Groups of H-4 Spouses Covered by Rule

There would be two groups eligible to apply for employment authorization, should the rule go into effect as proposed. The first group would include H-4 spouses of H1B workers who are the beneficiaries of approved I-140 immigrant petitions. The second group would consist of H-4 spouses of principals whose H1B status was extended beyond the six-year limit under the H1B provisions of the American Competitiveness in the Twenty-First Century Act (AC21). The requirements for extension of H1B status under AC21 are that (a) the foreign national must be the beneficiary of a PERM labor certification (LC) made 365 days prior (or have filed the I-140 petition 365 days earlier in those cases that do not need the LC filing); or (b) the LC and I-140 must be approved, with no visa number (based upon the priority date) available.

H-4 Children Not Included in Proposal

The proposed rule would not extend employment eligibility to all H-4 dependents. Rather, it would only apply to H-4 spouses who meet the aforementioned criteria. H-4 children, even those who are old enough to work, would not be eligible to apply for employment authorization.

Employment Authorization Document Required

Assuming this rule is finalized, even an eligible H-4 spouse would not automatically be granted employment authorization. Rather, the H-4 dependent would need to apply for an employment authorization document (EAD). The individual would not become authorized to work until the EAD application is approved.

Conclusion

The Murthy Law Firm is thrilled by the prospect of a substantial number of H-4 spouses being granted work authorization. After numerous failed attempts to bestow this benefit on H-4 dependents, this proposal appears to be moving forward. While there is no way to know for certain if or when this rule may go into effect, MurthyDotCom will continue to track this story closely.

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