Immigration and firm news

H-4 Work Authorization Rules Announced

USCIS is releasing regulations on February 25, 2015 that will allow some H-4 dependent spouses of H-1B specialty occupation employees to work in the US.  USCIS will not begin accepting applications for work authorization (Form I-765) until May 26, 2015. Although these rules were announced by President Obama in his November 20, 2014 Executive Action list of to-do projects, proposed regulations on H-4 work authorization were actually published for comment earlier in 2014.  Focus on the word “some” above.  This program is aimed at spouses of H-1B workers who are in the process of transitioning to permanent residence. It will not apply to new arrivals or those whose employers are not far enough along in the permanent residence process on behalf of  their H-1B employees.

The basic requirements are that the H-4 spouses can apply for work authorization only after their H-1B spouses have:

  • received an approved I-140 (Petition for Alien Worker) as part of the permanent residence process OR
  • received an H-1B extension under AC21 (that extends stay more than the maximum six years) following the filing of  labor certification or visa petitions at least a year earlier.

The purpose of the rule is to encourage H-1B workers to stay in the US to complete their permanent residence status and to help the economy.  Many H-1B workers, especially, but not only, Indian and Chinese nationals, often give up on permanent residence when their cases get stuck in the quota. Many have spouses who have not been able to work in the US for years.  This rule provides a disincentive for H-1B families to leave the US when permanent residence takes so long and enables US workers to remain competitive by being able to keep highly skilled workers.   Other countries have more competitive immigration schemes. This rule recognizes that US employers are losing key employees stuck in the immigration process with spouses who cannot work.  This rule should help US employers retain valuable employees who might otherwise go to other countries or whose projects may be disrupted by having to send employees abroad to wait for the quota before they can come back.

USCIS estimates that in the first year of operation, there will be about 180,000 H-4 work authorization applicants followed by about 50,000 in subsequent years.

Under current law, the first time H-4 spouses are able to work is when there is a pending application for adjustment of status to permanent residence.  Adjustment applications cannot be filed, however, until the quota is “current.” In most years, this can be several years into the permanent residence process.  At the end of the normal six-year period of H-1B status, the nonimmigrant must leave the USA, change to another nonimmigrant status, apply for adjustment of status to permanent residence, or qualify for one of the exceptions to the six-year limit.  The H-4 dependent spouse is literally dependent on the H-1B spouse’s status.

To apply for permanent residence through a job, the general rule is that the employer must first undergo recruitment of “qualified, willing and able US workers,” called “labor certification” or PERM. This process can take months to years.  Then the employer must file a Petition for Alien Worker (Form I-140).  This can also take several months. Finally, the adjustment application is filed for the immigrant and dependent family members, but when the quota is current.  Some categories of employment based immigration do not require PERM.  Sometimes when the quota is “current,”  the I140 can be filed concurrently with the adjustment application and accompanying work authorization and travel document for all the family members.  The new H-4 work authorization rules, however, will help prevent disincentives for families that might leave the US because their permanent residence cases are taking too long before they can file for adjustment of status.

AC21 was enacted by Congress to permit H-1B extensions (and thus H-4 extensions, too), for those H-1B workers whose PERM and I140 applications are processing beyond the sixth year H-1B cap.

H-4 Work Authorization applicants will need to file Form I-765, provide photos, and pay the filing fee of $465 (includes the biometrics fee) . They will also need to prove the marital relationship (both the legality of the marriage and the bona fides) as a spouse dependent, proof the principal spouse is in H-1B status and either has an approved I140 or has an H-1B extension approved based on AC21.  Applicants will also be able to file the I-765 concurrently with extension requests on form I539 (which can also be filed concurrently with the form I-129 for the principal H-1B beneficiary).  Work authorization will be issued for the duration of the H-1B spouse’s petition validity.

This program does NOT apply to H-4 dependent children, or H-4 dependent spouses of H-1B1 (Chilean and Singaporan workers), H-2B workers or H-3 trainees.  USCIS held off on treatment of these spouses because of Congressional intent regarding AC 21 treatment of  H-1B workers and lengthy permanent residence delays. Thus, for H-1B1s, H-2Bs and H-3 workers, statutory intent is not similar to the statutory framework providing work authorization for L-1 and E-1/E-2 spouses. Keep in mind that this is part of President Obama’s Executive Action initiative to work within existing statutes while Congress cannot or will not fix the immigration laws via statute.  Furthermore, the rule does not require eligible H-4 spouses to file for work permits if they do not want to.  Presumably, most will, for Social Security number and drivers license reasons.

By limiting the group of H-4 work authorized spouses to those with approved v. filed or pending PERM or I140s, USCIS hopes to avoid frivolous PERM and I140 filings.  Also, an approved I-140 is usually indicative of a strong likelihood the beneficiary will be successful in completing permanent residence compared to a case that is merely pending.  Further, USCIS has less control and access to information in the PERM process that is regulated by DOL.

The Federal Register includes USCIS’ review of the comments received during the proposed rule comment period. It makes for an interesting read both as to the wide variety of comments received and the agency’s response to what it chose to keep or change from the proposed rule.