DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

Lal Varghese, Attorney at Law, Dallas

There is lot of misunderstandings about the work authorization for the spouses of H-1B visa holders. The final rule was published on Feb. 24, 2015 by the U.S. Citizenship and Immigration Services (USCIS) in the Federal Register with an effective date of May 26, 2015. By this new rule, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.  Allowing the spouses of these visa holders to legally work in the United States makes perfect sense, and it helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

•Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

•Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

In other words this new rule provides only those spouses of H-1B nonimmigrants who have an approved I-140 petition or those H-1B nonimmigrant workers who are allowed to stay beyond the initial 6 year period on the reason that their labor certification is pending for more than one year. This means that all other spouses of H-1B nonimmigrants are not eligible to apply for work permit under these rules. Recently there are several news appearing in desi papers especially here to create an impression that all spouses of H-1B nonimmigrants are eligible to apply for work permit.

DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. As such, the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers. 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 in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

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. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

Disclaimer:  Lal Varghese, Attorney at Law, with more than 36 (about 21 years in U. S. Immigration Laws) years of experience as an Attorney, mainly practices in U. S. immigration law and is located in Dallas, Texas. He does not claim authorship for above referenced information since it is obtained from several sources including USCIS, DOS web sites, AILA and other Internet based legal sources, and published for the benefit of the general public. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matter collected from various legal sources. For individual cases and specific questions you are advised to consult any attorney of your choice or contact your State Bar Organizations or local Bar Associations or American Immigration Lawyers’ Association (AILA) for finding an attorney or for any legal help. You can visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com or www.facebook.com/groups/usattorney for information about U. S. immigration law related matters. Lal Varghese, Attorney at Law can be reached at (972) 788-0777 or at his e-mail: attylal@aol.com if you have any questions.