Final rule on H-4 spousal work authorization expected soon

A rule that will allow spouses of some H-1B employees to obtain work authorization is expected to be finalized in the coming weeks.

The rule is currently under review by the Office of Information and Regulatory Affairs – one of the final steps in the rulemaking process. The OIRA is part of the Office of Management and Budget and coordinates the process of draft rules becoming finalized regulations.

Proposed by the Department of Homeland Security last May, the rule would extend work authorization to some spouses holding H-4 visas, as long as the H-1B principal has started the process of applying for an employment-based green card. The H-1B employee must have an approved I-140 immigrant petition or have extended their authorized stay under the American Competitiveness in the 21st Century Act of 2000 (AC21) beyond the normal six-year period. To extend under AC21, a foreign worker must be the beneficiary of a PERM or I-140 petition pending for at least 365 days, or have an approved I-140.

The substance of the rule is unlikely to change before it becomes final, but forms and procedures have yet to be finalized. The OIRA has already drafted a revised I-765 Application for Employment Authorization for eligible spouses.

After OIRA review, the rule will be published in the Federal Register and given an effective date, most likely 30 or 60 days after publication.

BAL Analysis: The rule is a very positive development for H-1B workers and their families that will also help employers attract and retain H-1B workers. BAL anticipates a high demand when the rule takes effect, and the wave of new applications may coincide with H-1B cap season. DHS estimated that as many as 100,600 H-4 visa holders will be eligible during the first year. Applicants should expect a large turnout and possible delays to the normal 90-day processing time for employment authorization.

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