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Work Authorization for H-4 Dependents: DHS Publishes Proposed Rule May 11

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Work Authorization for H-4 Dependents: DHS Publishes Proposed Rule May 11

May 13, 2014 | Tags: H-4

As we reported last week, the government is following the Administration's push to fix immigration challenges while Congress remains stalled. On May 11, the Department of Homeland Security published its proposed rule in the Federal Register. What employers and employees need to know:

  1. Count on the rule being finalized between mid August to mid September. August 10 would be the earliest date this rule could become finalized under the Administrative Procedures Act, as it is 30 days following July 11, the close of the 60 day notice and comment period, but we anticipate it will take the government longer to respond to all of the comments.
  2. Work authorization would only be accorded to H-4 dependent spouses of H-1B employees who are far enough along in the permanent residence process:Under the proposed rule, H-4 spouses have two ways they may be eligible for work authorization:
    • The employer must have either (a) obtained an approved I-140 alien worker petition on the primary H-1B worker's behalf; or (b) obtained permitted H-1B extensions on the primary H-1B worker's behalf beyond the normal six years of H-1B status because the employer filed the PERM labor certification application 365 days before.
  3. We encourage both employers and employees to tell their stories to the government and comment on the proposed rule.Here's how:
    • By email at Include DHS docket number USCIS-2010-0017 in the subject line of the message.
    • By snail mail to Laura Dawkins, Chief Regulatory Coordinator, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529. Reference DHS Docket No. USCIS-2010-0017 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.

When our firm comments, we will admonish that the government does not go far enough in providing relief: H-4 spouses should not have to wait until an employer gets though the PERM labor certification process (1-2 years) and possibly more, before they are eligible for work authorization. Rather, H-4 spouses should be eligible for work authorization immediately (known as "incident" to status) like spouses of many other nonimmigrant visa holders.

We will keep everyone updated with developments.

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