DHS Proposes Rule To Extend Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants

As part of the Obama administration’s efforts to attract highly skilled workers, the Department of Homeland Security (DHS) has proposed extending the availability of employment authorization to certain H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are seeking lawful permanent resident status through employment.

The proposed rule includes such spouses of H-1B nonimmigrants who are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted an extension of their authorized period of admission in the United States 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.

DHS said this regulatory change is intended to lessen any potential economic burden on the H-1B principal and H-4 dependent spouse during the transition from nonimmigrant to lawful permanent resident status, furthering the U.S. goals of attracting and retaining highly skilled foreign workers. The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardship for the families of H-1B nonimmigrants the longer they remain in the United States, DHS noted. In many cases, for those H-1B nonimmigrants and their families who wish to remain permanently in the United States, the time frame required for an

H-1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years. As a result, DHS pointed out, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers. “Retaining highly skilled persons who intend to acquire lawful permanent residence is important to the United States given the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which correlate highly with overall economic growth and job creation,” the agency said.

DHS believes that this proposal would further encourage H-1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents (to the detriment of their U.S. employers) because their H-4 nonimmigrant spouses are unable to obtain work authorization. DHS said this proposal also would remove the disincentive for many H-1B families to start the immigrant process due to the lengthy waiting periods associated with acquiring lawful permanent resident status.

DHS seeks public comments on the proposed rule. The agency noted that the most useful comments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support the change.