Spouses of H-1B Nonimmigrant Workers May Be Able to Work in the U.S.
The Department of Homeland Security (DHS) today announced the publication
of two proposed rules, of particular interest is a rule to extend employment authorization to
spouses of certain H-1B workers. Under existing regulations, H-4 dependents
are not permitted to work in the U.S. The change proposed by DHS, would
allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request
USCIS for employment authorization, as long as the H-1B worker has already
started the process of seeking lawful permanent residence through employment.
Eligible individuals would include H-4 dependent spouses of principal H-1B
- have started the employment-based green card application process, i.e.
filed a PERM Labor Certification application or Form I-140 Immigrant Petition
for Alien Worker (if exempt from the PERM Labor Certification requirement);
- are the beneficiaries of an approved Form I-140, Immigrant Petition for
Alien Worker; or
- have been granted an extension of their authorized period of stay in the
United States under the American Competitiveness in the Twenty-first Century
Act of 2000 (AC21) as amended by the 21st Century Department of Justice
Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful
permanent residence to work and remain in the United States beyond the
The proposed rule will be subject to a 60-day period of public comment
that could lead to further amendments; however, USCIS officials anticipate
issuing final regulations by the end of this year. The proposed rule,
if passed, will benefit as many as 97,000 immigrants in the first year
and about 30,000 per year thereafter.
If the proposed rule above is passed, Employers seeking to hire H-4 spouses
should anticipate three to seven months processing time before the H-4
spouse is work authorized. Unless exempt from the PERM requirement, it
takes approximately a total of two to four months of preparation time
before the Employer can file the PERM application with the Department
of Labor. This is because PERM applications require Employers to show
good faith recruitment effort, and the Employers need approximately four
months to – obtain a Prevailing Wage Determination; complete the
recruitment process; and complete ETA Form 9089 Foreign Labor Certification.
In addition, we anticipate the application process for work authorization
for H-4 dependents will be akin to that for L-2 dependents. Specifically,
eligible H-4 dependents will have to file an Application for Employment
Authorization, in order to obtain the Employment Authorization Document
(EAD). Currently, the EAD average processing time is three (3) months.
As such, Employers seeking to hire H-4 spouses may have to wait between
three (3) (if the H-1B spouse has already filed an employment-based green
card application) to seven (7) months before the H-4 spouses become work
The second proposed rule aims to remove obstacles for highly-skilled specialty
occupation professionals from Chile and Singapore (H-1B1) and from Australia
(E-3) to remain in the U.S. Under existing regulations, only H-1B beneficiaries
are permitted to continue working up to 240 days beyond the I-94 expiration
date, while the extension request is pending. The proposed rule would
extend the 240-day benefit to E-3, and H-1B1 beneficiaries