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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 workers who:

  • 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 six-year limit.

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 authorized.

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

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