On May 12, 2014, the US Department of Homeland Security (DHS) issued a Proposed Rule that would amend provisions of the US Citizenship and Immigration Service’s (USCIS’s) Regulations regarding work authorization for certain H-4 nonimmigrants.

An H-4 nonimmigrant is the spouse or child of an H-1B worker.  H-4 status does not currently provide eligibility for work authorization.

In a bold and seemingly well-considered move, DHS is proposing to change this.  Employment eligibility would not, however, be open to all who are in H-4 status.  Instead, if the proposed measure stands as it is, it would enable an H-4 spouse to apply for employment authorization if:

  • The H-1B spouse is either the beneficiary of an approved I-140 Immigrant Petition for Alien Worker, or
  • The H-1B spouse has been granted an extension of his/her authorized period of admission under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act. (Generally summarized, this is the provision which permits an H-1B petition to be extended beyond 6 years if the H-1B worker is the beneficiary of either a PERM application or I-140 petition pending for at least 365 days prior to reaching the 6th year of H-1B time.)

The stated goal in permitting certain H-4 nonimmigrants to apply for work authorization is the country’s interest in “attracting and retaining high-skilled foreign workers” for the benefit of the US economy, US employers, and alleviating possible economic burdens on the families of H-1B workers.  The benefit is also meant to encourage foreign workers who are stuck in what seems like an endless delay toward becoming US permanent residents, to remain in the US until the greencard process can be finished (i.e., a visa number becomes available and the case can be processed to conclusion).  In summary, if due to a priority-date backlog, an H-4 spouse can’t file an I-485 application to be eligible for employment-authorization, the Proposed Rule is the “fix” to permit the filing of the employment card application.

This proactive measure may also inadvertently help alleviate problems for US employers resulting from the limit on H-1B numbers.  Presumably, at least some of H-4 spouses were the beneficiaries of H-1B petitions that were selected in the H-1B cap lottery (and took a highly prized H-1B number) or were not selected (leaving a US employer without its prospective employee).

On another note, an interest of the country is also family unity.  Although this isn’t an economic interest, it would seem to me that consideration should be given to opening up eligibility for employment authorization to any spouse of a foreign worker who is maintaining lawful status and is the beneficiary of a Family-Based petition in a severely
retrogressed category.  Perhaps not many people would benefit, but…it’s a thought.


Ms. Wadhwani is a partner in the Immigration Group of Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.