The Department of Homeland Security (DHS) recently announced a proposal to allow certain H-4 dependent spouses of H-1Bs to work with legal authorization. Under current regulations, H-4 dependents are not eligible for an Employment Authorization Documents (EAD). Given that most H-1B specialty workers are usually admitted for an initial period of three years, and more often than not, apply for a three year extension, their spouses often find themselves in the unenviable position of staying here in the US without being able to find meaningful work and contribute to their households. Not only has this proven to generate economic hardship for those H-1Bs already in the pipeline for permanent residence, it has actually deterred many skilled and talented workers from pursuing green cards here out of concern for their spouses. The government has finally recognized the detriment caused by the loss of these workers and proposed some interesting revisions that could affect an estimated 100,600 H-4 status holders in the first year of implementation alone.
It is important to understand that this is a proposed rule. As of yet, it is not yet in effect. Additionally, the rule change does not apply to all H-4 dependent spouses. Rather, it is intended for two discrete groups of H-4s: namely, those H-4 dependent spouses of H1B nonimmigrants who are the beneficiary of an approved I-140 petition or those H-1Bs who have been granted an extension of their authorized period of admission in the US under the American Competitiveness in the Twenty-first Century Act of 2000, otherwise known as “AC21.” In both cases, the H-1B principals are in the process of pursuing permanent residence. The I-140 is an Immigrant Petition for Alien Worker and represents an employer’s intention to sponsor the alien for a green card based upon on an offer of employment. AC21, on the other hand, specifically sections 106(a) and (b) allow H-1Bs to obtain extensions of their H-1B status beyond the sixth year provided the alien is a beneficiary of a labor certification or employment based application that has been pending for 365 days prior to reaching the end of the sixth year. EADs with a validity period of up to two years is being considered.
The proposal envisions the following documentary evidence be submitted in support of an H-4’s application for employment authorization:
1. Evidence that the principal H-1B nonimmigrant is the beneficiary of an approved Form I-140; or
2. Evidence that the principal H-1B nonimmigrant’s Labor Certification or I-140 petition has been pending for more than 365 days, or evidence that the H-1B principal is the beneficiary of an unexpired Labor Certification that was filed more than 365 days ago, along with copies of documentation showing that the principal H-1B nonimmigrant has been in H-1B nonimmigrant status beyond six years (e.g., passport, prior Forms I-94, current and prior Forms I-797, copies of pay stubs); and
3. Copy of the H-4 dependent spouse’s current approval notice of stay or Form I-94 evidencing admission as an H-4 nonimmigrant pursuant to the H-1B nonimmigrant’s approved extension of stay based on sections 106(a) and (b) of AC21.
4. Secondary evidence may be considered in lieu of the evidence listed above, such as, but not limited to: an attestation by the H-1B nonimmigrant regarding his or her AC21 sections 106(a) and (b)- based extension of stay or I-140 petition approval, petition receipt numbers, or copies of any relevant petitions or receipt notices
The hope is that these changes will encourage H-1B workers who might otherwise be hesitant to pursue green cards (due to potential hardships to their spouses) to continue the path to permanent residence. This would also, in turn, mitigate the disruption to US businesses who rely upon H-1Bs as part of their workforce. It certainly makes sense and should alleviate the domestic tension and financial difficulties that arise when only one member is allowed to work.
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