Obama Administration To Allow Employment Authorization for Some H-4 Spouses **UPDATED**

April 6, 2014

We wrote back in April (see the original piece below) that the Obama Administration was planning on allowing some H-4 spouses to apply for employment authorization. However, at the time it wasn’t clear which H-4 spouses would be eligible. Today, the Department of Homeland Security offered some clarification. Once the rules are changed, H-4 nonimmigrants will be able to apply for work authorization if their H-1B spouse:

  • Is the beneficiary of an approved I-140; or,
  • Has otherwise extended H-1B status past 6 years under AC21

Any changes are at least two months away from taking effect. Once the new rules are released to the public later this week, there will be  a 60-day period where the public is invited to comment on the proposed changes. Hopefully the new rules would be implemented shortly thereafter. We’ll continue to provide updates as additional details emerge.

***Original story below***

H-4 visa holders – the spouses and children of H-1B visa holders – are not currently permitted to work in the U.S. This is confusing from a policy perspective – why would we want to have people in the country who are legally barred from contributing their skills and labor to the economy? – but it is also a huge burden on families, who are forced by law to get by on only one salary. This policy also hurts women, who are disproportionately likely to be H-4 spouses.

However, according to a recently released White House fact sheet, the restriction may be coming to an end:

The Department of Homeland Security (DHS) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness.  These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.  [Emphasis added]

As of yet, the White House has not released details stating which “certain spouses” will be eligible to apply for employment authorization. However, Dara Lind, in an excellent overview of the issue at Vox.com, seems to have gotten some additional information on what the criteria will be:

Under the new regulations, spouses of workers with H1B visas could also work legally in the US — but only under three circumstances:

    • the employer of the H1B visa holder (the working spouse) already applied for him to get a green card

    • the spouse is a high-skilled immigrant in her own right — educated and qualified to work in the same sort of fields her husband is, and

    • the family has been in the US for a certain amount of time.

These are serious restrictions, which will prevent many (if not most) H-4 spouses from being eligible to apply for employment authorization. There are also many questions left to be answered. Does the employer simply need to have initiated PERM proceedings for the H-1B visa holder? Do they need an approved PERM? An approved I-140? How long must the family have been in the U.S.?

The answers to these questions will do a lot to determine how helpful these new regulations will be, but any change in this direction is welcome.

President Barack Obama delivers remarks on the Department of Homeland Security’s immigration announcement in the Rose Garden of the White House, June 15, 2012. (Official White House Photo by Sonya N. Hebert)

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