21 May 2014
Category News Room
21 May 2014,

The Department of Homeland Security (DHS) published a rule on May 12th that would allow certain H-4 dependent spouses to obtain work authorization while in the U.S.  The work authorization would most likely be issued in up to 2 year increments with each application.  In its May 12th comments introducing the proposal DHS views this rule as a positive change that will help to reduce the financial burden on families of H-1B specialty workers, particularly those who are subject to the immigrant visa backlog and wait years for their priority date to become current.  DHS believes that by offering this benefit they are assisting U.S. employers in their efforts to retain H-1B workers who face long waits to process their immigrant visas.  Put simply they are trying to help avoid the situation where employers spend thousands of dollars to support an employee’s effort to immigrate only to have that employee return home because their spouse is not in a position to work and pursue his or her career for many years.

As written, this rule would allow the spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment, to apply for work authorization if the spouse is holding H-4 status, and:

  1. The H-1B principal is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140), or
  2. The H-1B principal has been granted an extension of their authorized period of admission in the U.S. under the American Competitiveness in the Twenty-First Century Act of 2000 (also known as AC-21) (this means they will have either filed a PERM or I-140 more than 365 days prior to seeking the current H-1B period).

In the first option, the H-1B principal has already been through the PERM and I-140 processes.  In the second option, the H-1B principal is at a minimum only required to have a PERM in process, but they must have received an extension of their H-1B status based on the AC-21 legislation.  So in practice individuals attempting the second option need to have been in the U.S. at least four years in H-1B status.  Those completing the first option need only be here as long as it takes to complete both steps, or possibly no more than twelve months.

We’ve already started to receive numerous emails from employees seeking more information on this proposal.  We’ve advised that at this point it is too early to make any decisions as the rule is not yet in force, and may possibly be amended after the comment period.  However, it is important for all employers to be aware of this likely change ahead of time so that you can consider your options.

We see two immediate policy implications for employers:

1 – employers will need to decide if they wish to support this process by paying legal fees and application costs.  As many employers already assist employees in L and E status to obtain work authorization for their spouse, those employers may want to add this benefit option to be consistent.

2 – as many H-4 spouses are interested in working while in the U.S. and they may either be ineligible for H-1B status or some other form of work authorization, we expect that this benefit will cause more H-1B workers to ask to start their permanent resident process sooner than they may have previously asked to ensure their spouse is work authorized while in the U.S.  We also recognize that the current H-1B quota system has resulted in otherwise qualified non-immigrants losing an opportunity to work in the U.S. when they are rejected by the lottery or don’t land an employer until all available H-1Bs are gone.  In these situations, this might be a new avenue for individuals to maintain a work authorization and work in the job they really wanted.  We could see a situation where individuals might also want to premium process an I-140 petition filing to speed up the decision-making and thus ensure work authorization for their spouse happens even sooner.

Both outcomes create possibly new benefits for your employee and their spouse, at the same time, there is the possibility of increased costs to pay for these benefits.

The rule is open to comments until July 11th.  After that, the DHS will take any comments into consideration before finalizing the rule or making changes and restarting the comment period. Given that this is a positive change that many have been advocating for over the past several years, we anticipate it will finalized with little if any changes.  The uncertainty is how long this process will take – it could be effective in a few short months or take much longer.  Once it receives final publication it will be effective.  If you wish to view the proposed rule, it can be found at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0017-0001

As always, please do not hesitate to contact us if you have any questions.  Now is a good time to consider internal policy considerations.  We will provide an update as soon as we have any information on the final rule to be published and when such a provision would take effect.

**This newsletter is provided for information purposes only, and is not intended to provide legal advice.**

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