Proposed Rules on Work Authorization for Certain H-1B Dependents and Others Expected to Advance

Two highly anticipated proposed regulations will soon advance to the next stage of the federal regulatory process, the White House announced earlier this week. The rules seek to allow H-4 dependents of certain H-1B foreign nationals to seek work authorization and to extend the work authorization of E-3 and H-1B1 employees awaiting the approval of a timely-filed extension petition. 

The draft H-4 rule is expected to propose eligibility for employment authorization for the dependent spouses of H-1B nonimmigrants who are beneficiaries of extensions past their six-year time limit. Post-6th year extensions are available in certain circumstances to H-1B employees with long-pending employment-based permanent residence sponsorship cases. Under current law, H-4 foreign nationals are not eligible to apply for employment authorization pursuant to their nonimmigrant status. 

A separate rule is expected to extend employment authorization for 240 days beyond the period specified on an E-3 or H-1B1 nonimmigrant’s Form I-94 arrival record, as long as the foreign national is the beneficiary of a timely application to extend status filed by the same employer. Under current rules, this 240-day extension is available to qualifying H-1B, L-1 and certain other nonimmigrants, but not to E-3s or H-1B1s. 

Both proposals have been pending at the Office of Management and Budget (OMB) for several months. Once they initially clear OMB, they will be published as Notices of Proposed Rulemaking with a public comment period of at least 30 days and additional time for DHS to consider comments. The rules will not be implemented until after they receive final approval from OMB -- a process that could take several months or more for each rule. 

The exact contents of the two proposed rules will remain confidential until they are published in the Federal Register. Abstracts of the H-4 and 240-day extension of employment authorization proposed rules are available at the OMB website. 

The proposals are part of the Obama Administration’s Startup America Initiative, which was begun in 2011 and includes plans to implement administrative reforms at the Department of Homeland Security to attract and retain highly skilled foreign nationals. 

What This Means for Employers and Foreign Nationals 

If implemented, the rules would give some – but by no means all – spouses of H-1B employees the opportunity to work in the United States and would help E-3 and H-1B1 employees avoid work interruption when an application for an extension of stay is pending past their initial period of stay in the United States.