In a conference call with stakeholders today, U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez said that his agency is completing work on a regulation that allows certain H-4 nonimmigrants to apply for employment authorization, with implementation “close at hand.” Director Rodriguez offered no concrete details or timelines, but he reassured stakeholders that no policy issues remain unresolved. Rather, the agency is finalizing administrative matters concerning issuance of employment authorization documents (EADs) to eligible H-4 nonimmigrants. The regulation was originally slated for publication in December 2014.
As originally proposed, the rule would allow an H-4 nonimmigrant 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 application or an I-140 petition that was filed on his or her behalf 365 days or more in the past and is seeking or has obtained an extension of H-1B status beyond the sixth year on the basis of the pending permanent residence case.
What’s Next for the H-4 EAD Rule
USCIS must submit a final version of the regulation to the Office of Management and Budget (OMB) for review and clearance. After OMB gives its approval, the rule will be published in the Federal Register and an implementation date announced. USCIS is expected to begin accepting H-4 EAD applications soon after the rule is published.
Details of the final rule -- including information about EAD eligibility and application requirements -- are confidential and will not be released until the rule is slated for publication.
What This Means for Employers and Foreign Nationals
Once the rule is implemented, eligible H-4 nonimmigrants will need to file a Form I-765 application for employment authorization, along with documentation of their H-1B spouse's permanent residence case. USCIS is expected to announce specific application procedures and requirements when the regulation is finally released.
Fragomen is closely monitoring the progress of the rule. We will notify employers and foreign nationals as soon as the H-4 EAD program is formally announced.
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