Certain H-4 dependent spouses of H-lB visa holders have been eligible for U.S. employment authorization, following a U.S. Department of Homeland Security (“DHS”) rule change in May 2015[1]. Since that time, thousands of spouses with H-4 classifications have applied for and obtained employment authorization documents (“EAD”). With these EADs, they have entered the U.S. workforce in various critical and much-needed professional and non-professional and skilled or unskilled jobs. Other H-4 dependent spouses hope to obtain such U.S. work authorization as soon as they are eligible for it.
Under the Buy American Hire American Executive Order (Executive Order 13788), these H-4 dependent spouses are now in serious jeopardy of losing their eligibility for such U.S. work authorization.
In December 2017, DHS announced an agenda item in its Fall 2017 Regulatory Agenda entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” This agenda item states that DHS intends to amend or potentially remove the rule that permits H-4 dependent spouses to obtain U.S. employment authorization. Although a proposed rule was scheduled to be published in February 2018, DHS now states that it needs additional time to revise its initial draft of the proposed rule and conduct a “significant economic analysis.” Therefore, DHS expects to publish the proposed rule in June 2018. Due to a required notice and comment period for the proposed rule, a final rule may not become effective for approximately six months.
In light of the imminent possibility that H-4 dependent spouses will soon lose eligibility for initial or renewed U.S. employment authorization, U.S. employers with such H-4 workers should take steps now in order to retain them. Therefore, U.S. employers should explore whether these H-4 workers have other U.S. work-authorized visa options available to them. Where such options are available, U.S. employers and H-4 workers should immediately pursue them. Additionally, prior to any rule change that may take away their eligibility for this benefit, H-4 dependent spouses should plan to file initial and renewal EAD applications at the earliest time they are eligible to do so in order to obtain or retain their U.S. employment authorization for as long as possible.
[1] H-4 dependent spouses are eligible for employment authorization provided the principal H-1B visa holder has already started the process of seeking employment-based lawful permanent resident status (e.g. a “green card”) and either: (1) is the principal beneficiary of an approved I-140, Immigrant Petition for Alien Worker; or (2) has been granted an H-1B extension beyond the six-year H-1B period of admission limitation under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice appropriations Authorization Act (“AC21”).