This week, the White House announced that it intends to move forward on a proposed rule that would allow spouses of certain H-1B visa holders to work while present in the U.S. In 2002, Congress amended the Immigration and Nationality Act to authorize dependent spouses of L-1 and E visa holders to work while in the U.S. However, spouses of H-1B workers who are in H-4 status are currently prohibited from employment, often creating a disincentive for young, highly-skilled professionals to stay in the U.S.

Last year, the Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking (NPRM) indicating that it was pursuing a regulation that would make H-4 dependent spouses eligible for employment authorization where the H-1B principal has begun the process of seeking an employment-based green card and has extended his or her H-1B stay under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Congress passed AC21 to minimize disruptions to business by allowing H-1B professionals with a pending or approved immigrant or labor certification petition to apply for extensions beyond the maximum six-year H-1B validity period.

According to DHS, the proposed rule was “intended to mitigate some of the negative economic effects of limiting H-1B households to one income during lengthy waiting periods in the adjustment of status process. Also, this rule will encourage H-1B skilled workers to not abandon their adjustment application because their H-4 spouse is unable to work.” The proposed rule would likely be subject to public notice and comment, and any revised policy would not go into effect until DHS issues a final regulation. It is unclear whether DHS will alter the scope of last year’s Notice of Proposed Rulemaking.

BAL Analysis: The announcement by the White House will be well received by the business community. Last year’s Notice of Proposed Rulemaking did, however, limit work authorization to spouses of H-1B workers who are in the late stages of the green card process. Should DHS proceed with the proposed regulation, BAL will work with businesses and trade associations to expand the provision to reach other H-4 derivatives.

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