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USCIS Released Proposed Rule on Employment Authorization for Certain H-4 Spouses

On May 12, 2014, the Department of Homeland Security (DHS) released its proposed rule on employment authorization for certain H-4 spouses. 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’s employment-based green card application process is well underway.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • 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 based on Sections 106(a) and (b) of AC21.

Sections 106(a) and (b) of AC21 permits extension of H-1B authorized period of stay beyond the initial 6-year period in one-year increments if a PERM labor certification application or an I-140 has been pending adjudication for at least 365 days.

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 100,600 immigrants in the first year and about 35,900annually in subsequent years. It should be noted, however, that consistent with granting employment authorization to spouses of E-1/E-2 and L-1 beneficiaries, the DHS does not intend to extend the eligibility for employment authorization to H-4 dependent children (unmarried children under 21 years of age).

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