DHS issues final rule allowing H-4 dependent spouses to apply for work authorization

Under a final rule announced today, certain H-4 dependent spouses of H-1B visa holders will be able to apply for work authorization beginning May 26.

The new H-4 regulation extends work authorization to H-4 dependent spouses, as long as the primary H-1B worker is at a certain stage of the green card process. Under prior regulations, H-4 spouses were not allowed to work. The new rule will only apply to H-4 dependent spouses of principal H-1B holders who have an approved Form I-140 petition or have been granted extensions of stay beyond the normal six-year period under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

According to U.S. Citizenship and Immigration Services director Leon Rodriguez, it “makes perfect sense” to allow spouses of this category of visa holders to legally work in the U.S.

“It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents,” he said. ” It also provides more economic stability and better quality of life for the affected families.” USCIS prioritized finalizing the regulation after President Barack Obama announced several initiatives to modernize visa programs with his other immigration executive actions last November.

Starting May 26, eligible H-4 spouses may apply for work authorization using the existing procedures by filing a Form I-765 application for an Employment Authorization Document (EAD) with supporting evidence and a $380 fee. Once the application is approved, the H-4 dependent spouse will receive an EAD card from USCIS and may begin working. Currently, it is taking USCIS three months to process I-765 applications, meaning that the earliest time when new H-4 EAD applicants could expect to receive their cards would likely be toward the end of August.

DHS now estimates that as many as 179,600 H-4 visa holders will be eligible to apply for work authorization during the first year of the rule’s implementation and that 55,000 more will be eligible annually in subsequent years. The new rule consolidates policy on spousal work authorization by allowing spouses of H-1B nonimmigrants to apply for work permits, which is in line with current policy for spouses in the L, E-1, and E-2 visa categories.

For additional information or questions, please contact:

Lynden Melmed, Partner
Washington D.C.
Direct 202.842.5830
lmelmed@bal.com

Christiana Kern, Legislative Analyst
Direct 202.842.5831
ckern@bal.com

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