In the face of Congressional inaction on immigration reform, the Department of Homeland Security has proposed a rule change which may grant certain H-4 dependent spouses of H-1B nonimmigrants work authorization. Currently, H4 nonimmigrant spouses are not allowed to work or must find their own work-authorized nonimmigrant status. The current proposed rules, however, differ from past proposals in that work authorization for H4 spouses is extended only where the principal H1B holder has obtained the following:
1. An approved Immigrant Petition for Alien Worker (form I-140);
2. A PERM labor certification that has been on file for 365 days, or an I-140 filed and approved allowing for 3-year extensions beyond the 6-year on H1B.
According to DHS, the proposed rules have been introduced in an effort to retain talented foreign national professionals, as they may wait years (in some cases, decades) to obtain lawful permanent residency through an employment-based immigration process. While this proposed rule is a step in the right direction, its narrowly defined limits, allowing work authorization for H4 visa holders, stands in contrast to those E-2 and L-2 dependent spouses who have long been granted work-authorized status contingent only on the principal visa holder’s status.
DHS is certainly correct in its efforts to harmonize the rules in granting H4 dependent spouses work authorization, but it does not seem to stand to reason that this benefit would be so narrowly construed.
It is clearly within the administrative power of DHS to grant work authorization to H4 spouses. Given the fact that there is no statutory, regulatory, or other prohibition potentially allowing all H4 dependent spouses work authorization, why would the proposed rule stop short?
The current proposal must go through the rule-making process. We hope that during that process, the rule may be expanded to allow H4 spouses greater access to work authorization. We anticipate a final rule in about 6 months.
By: Faye Kolly, Managing Attorney in our Austin Office. Faye Specializes in employment based immigration cases and represents clients throughout the U.S. Call to schedule appointment today (512) 222-1284.