DHS Proposes Employment Authorization for Certain Spouses of H-1B Nonimmigrants and Others

The Department of Homeland Security has published two highly anticipated proposed regulations that, if implemented, would allow the H-4 spouses of certain H-1B foreign nationals to seek work authorization and would extend the work authorization of E-3 and H-1B1 employees awaiting the approval of a timely-filed extension petition. 

The long-awaited proposals are part of an Obama Administration initiative to attract and retain highly skilled foreign nationals in the United States. 

The following are some frequently asked questions that address the impact the proposed rules could have on foreign nationals and employers. 

1. Which H-4 spouses would be eligible for employment authorization? 

The H-4 rule would give some – but by no means all – spouses of H-1B workers the ability to seek work authorization. When the rule takes effect, an H-4 nonimmigrant would be able to apply for employment authorization if his or her H-1B spouse (1) is the beneficiary of an approved Form I-140 immigrant worker petition; or (2) is the beneficiary of a labor certification or a Form I-140 petition that was filed on the H-1B’s behalf 365 or more days in the past and is seeking or has obtained an extension of H-1B status beyond the sixth year on the basis of his or her pending permanent residence case. 

The purpose of the proposal is to encourage highly skilled H-1B workers to remain in the United States while they pursue permanent residence. The proposal recognizes that the lack of employment authorization for H-4 spouses of H-1Bs awaiting permanent residence creates hardships for families that may make it difficult for U.S. employers to retain talented employees. 

2. Once the employment authorization rule takes effect, how would an H-4 obtain employment authorization? 

Eligible H-4s would not receive work authorization automatically. To obtain permission to work, an eligible H-4 would be required to file a Form I-765 application for employment authorization with USCIS, along with evidence of the H-1B spouse’s qualifying permanent residence case and post-sixth year H-1B extension. USCIS is in the process of revising Form I-765 in anticipation of the implementation of the regulation. 

If the I-765 application were approved, the H-4 spouse would receive a USCIS employment authorization document (EAD) valid for up to two years, though not beyond the H-4’s period of stay. The EAD would serve as evidence of eligibility to work lawfully in the United States and could be used to obtain a U.S. Social Security number. 

3. How would E-3s, H-1B1s and their employers benefit from the proposed rule? 

A separate rule seeks to help Australian E-3 and Chilean and Singaporean H-1B1 nonimmigrants avoid work interruption when their current period of stay expires while an extension application is pending. 

The rule would give eligible E-3s and H-1B1s an additional 240 days of work authorization beyond the period specified on their Form I-94 arrival record, as long as a timely application to extend status has been filed by the employer that sponsored the most recent period of stay. Under current regulations, this 240-day extension is available to qualifying H-1B, L-1 and certain other nonimmigrants, but not to E-3s or H-1B1s. 

4. When will employment authorization be available to affected foreign nationals? 

Employment authorization will not become available until the proposed rules complete the federal review and approval process. According to agency officials, that could occur by the end of this year. 

Currently, the rules are at the proposal stage only. DHS will accept comments from the public through July 11, 2014. After the comment period closes, DHS will consider the feedback it receives and could make changes to the regulations. The rules would then return to OMB for further review and clearance. After OMB gives its final approval, the rules would be published in the Federal Register and an implementation date would be announced. 

5. How does the proposed rule affect immigrant worker petitions for outstanding professors and researchers? 

DHS is proposing to formally expand the types of evidence that employers can submit to support a Form I-140 immigrant worker petition for an EB-1 outstanding professor or researcher. Current agency regulations list specific types of evidence that an employer can submit to demonstrate that the beneficiary qualifies for this EB-1 subcategory, but does not clearly allow other comparable evidence. The proposed change will make the evidence standards for an outstanding professor or researcher comparable with those of other EB-1 subcategories. 

What Fragomen Can Do to Assist 

While the rules are in the proposal stage, Fragomen can assist employers who wish to submit comments to DHS. Once the rules are implemented, Fragomen can work with your organization to identify H-4 spouses who may be eligible for employment authorization and prepare applications. Fragomen can also help your organization ensure work authorization and compliance with I-9 verification rules for E-3 and H-1B1 employees seeking an extension of stay.