DHS has issued proposed regulations to allow the spouses of H-1B workers to apply for work authorization. The public has until July 11, 2014 to comment. Comments can be emailed to uscisfrcomment@dhs.gov using in the subject line “DHS docket number USCIS-2010-0017” or by commenting online using the preceding docket number to search. The purpose of the regulation is to address “personal and economic hardship for the families of H-1B nonimmigrants the longer they remain in the United States” particularly for beneficiaries of pending permanent resident applications where applicants are stuck in the quota and are thus not able to apply for immigrant visas or adjustment of status for several years. “As a result, 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 goal is to also give parity treatment to spouses of L (intracompany transferee), E-1 (treaty trader), and E-2 (Treaty investor status. Work authorization in this program would mostly be for those spouses who do not otherwise qualify for traditional work visas in their own right.

As proposed, the new rules would only apply to those spouses of principal H-1B visa holders who are recipients of approved I140 visa petitions or have been granted an extension of their authorized period of admission in the U.S. under the American Competitiveness in the Twenty-First Century Act of 2000 (AC 21). To receive AC21 H-1B extensions, applicants must have filed labor certification applications or I-140 visa petitions at least 365 days prior to reaching the end of the sixth year maximum in H-1B status. In other words, labor certification applications and/or visa petitions, if labor certification is waived, must be filed before the end of the fifth year of H-1B status to benefit from AC 21). This enables the H-1B visa holder to get one-year extensions while these petitions and applications are pending beyond the end of the sixth year in H-1B status. The H-4 spouse would only be able to get work authorization if the H-1B spouse is maintaining lawful status. Thus, the class of potential work authorized H-4 spouses are those whose principal spouses have achieved certain milestones in the permanent residence process, and who have also managed to keep extending their H-1B status. In addition, the proposed rules do not offer work authorization to dependent children.

DHS estimates that initially there would be 100,600 H-4 work authorization applicants in the first year and 35,900 individuals in subsequent years. Note, that AC21 issues can be very difficult in that there are all sorts of fact scenarios that can come up involving calculations of time, job changes, maintenance of status issues, and more. Getting legal advice from an experienced immigration lawyer is highly recommended. In the meantime, it is important to note that the H-4 work authorization rules are only proposed rules. The final version could be different after the agency reviews the comments received.