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Work Authorization for H-1B Spouse

The Obama administration has recently announced that it will propose rules that will allow certain H-1B spouses to work in the U.S. Under the current law, the dependent spouse of an H-1B nonimmigrant worker is not eligible to apply for work authorization.

The White House press release did not specify whether the proposed rule will be limited to a certain group of H-4 dependents or will allow all H-4 spouses to work. It simply indicated that the proposed regulation will allow “spouses of certain high-skilled workers on H-1B visas” to seek work authorization.

The draft rule could refer to dependent spouses of H-1B nonimmigrants who have been granted extension beyond the six-year limit under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).

A foreign worker is allowed a maximum period of 6 years on H-1B status. Under AC21, it may be extended when the H-1B worker is unable to adjust status before the end of the six-year period mainly because of delays in the adjudication of employment-based green card sponsorships and the unavailability of a visa number.

The U.S. Department of Homeland Security (DHS) made a similar proposal in its May 2012 Retrospective Review Plan Report. The May 2012 DHS report indicated that the proposal “would increase incentives of H-1B nonimmigrant workers who are allowed to extend their period of stay under AC21 as they complete the process to adjust status to that of a lawful permanent resident by providing parallel employment incentives to the H-4 spouse.”

The H-1B program is for foreign workers in specialty occupations. It has been frequently used by U.S. businesses to employ high-skilled foreign workers with degrees in science, technology, engineering and mathematics.

This year, the cap for H-1B applications was reached in the first five days of the filing season. The USCIS received a total of 172,500 H-1B petitions including those filed under the advanced degree exemption. A lottery was conducted to select the 20,000 petitions under the advanced degree exemption and the 65,000 cap-subject petitions.

The proposal to allow H-4 spouses to work is only one of the measures the White House is undertaking to make the United States “more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness.”

The draft rule is presently with the Office of Management and Budget (OMB). After initial clearance with OMB, it will be published as Notice of Proposed Rulemaking allowing the public to comment on it for at least 30 days. The proposed regulation in its exact form will not be released until published in the Federal Register.

Once the proposed regulation is in place, the qualifying H-4 visa holder will be issued an employment authorization document (EAD) which will allow them to work in the U.S. for the period indicated in the EAD. The validity of their EAD will be for the same period as their H-1B family member.

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