DHS Proposes Work Authorization for H-4 Spouses

By Roy Maurer May 7, 2014

Nearly 100,000 H-4 dependent spouses of certain H-1B guest workers would be eligible for work authorization in the United States under a proposed rule, the Department of Homeland Security (DHS) announced May 6, 2014.

Homeland Security Deputy Secretary Alejandro Mayorkas said in a news teleconference that the rule change would help the U.S. attract and keep world-class talent working in the United States.

“The proposals announced today will encourage highly skilled, specially trained individuals to remain in the United States and continue to support U.S. businesses and the growth of the U.S. economy,” he said.

The new rule is the latest executive action President Barack Obama’s administration has announced as efforts to move immigration reform in Congress have stalled.

The proposal would provide work authorization to the H-4 spouses of H-1B guest workers seeking lawful permanent residence through employment and who either:

  • Are the beneficiaries of an approved I-140 immigrant petition.
  • Have been granted an extension of stay in the U.S. under the American Competitiveness in the 21st Century Act, which allows H-1B workers seeking lawful permanent residence to remain in the U.S. beyond the normal six-year limit.

In addition to the initial 97,000 individuals who would be immediately eligible for work authorization under the proposed rule, DHS expects that around 30,000 would be eligible each year thereafter.

The Council for Global Immigration has worked to expand spousal work authorization opportunities under immigration laws and at the agency for decades, remarked Rebecca Peters, director and counsel for legislative affairs at the Council. “The spouse of E visa or L visa holders can work under today’s laws, but the spouse of an H-1B cannot, so this regulation is a good start,” she said.

“The new proposal is certainly welcome at a time when Congress will not take action on immigration reform,” said Tahmina Watson, immigration attorney and owner of Watson Immigration Law in Seattle. “The U.S. will now gain a generally high-skilled group of people who can start contributing to the economy immediately. This is a great start, but I hope the rule will be extended to all H-4 spouses of H-1Bs in the future.”

Blanket Extension Next?

DHS originally had considered extending work authorization to all H-4 spouses, but ultimately decided to limit that authorization to those who intend to remain in the U.S. permanently, the agency stated in its latest regulatory agenda.

“When we asked our members last year whether they’ve lost recruiting opportunities because spouses of H-1Bs are unable to get work authorization, nearly half replied that they have lost such opportunities,” said Justin Storch, manager of agency liaison at the Council for Global Immigration. “Over 30 percent have actually lost existing H-1B employees for the same reason,” he added.

The employment-based green card backlog in some cases requires immigrants to wait dozens of years for their visas, and the current regulations prohibit their spouses from working during that time.

“This rule will eliminate this problem for at least some of those H-1B employees,” said Storch. “We will continue to work toward work authorization eligibility for all H-4 spouses, whether that solution comes from the agencies or through legislation.”

The proposed rule will be subject to a 60-day public comment period once it is published in the Federal Register. DHS plans to act quickly following the close of the comment period to review the comments and publish final rules, Mayorkas said.

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

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