U.S. Department of Homeland Security (DHS) Proposed Regulatory Changes Allowing Spouses of H-1B Employees, Present in the U.S. in H-4 Status, to Apply for Employment Authorization under Certain Circumstances

If you have an H-1B employee, you probably know that a spouse of such employee present in the U.S. in H-4 status is not eligible to work. This could change
for some H-4 spouses if DHS adopts its proposed regulatory amendment. This amendment would allow H-4 spouses to apply for an Employment Authorization
Document in the following circumstances:

  1. When the H-1B employee is a beneficiary of the approved I-140 Immigrant Petition; or
  2. When the H-1B employee is working in the U.S. pursuant to the H-1B extension petition, filed under The American Competitiveness in the 21st Century Act (AC21), which allows extension of H-1B status beyond the six-year maximum period.*
    * Under AC21, H-1B status can be extended beyond six years if:

    1. An Application for Labor Certification on behalf of the H-1B employee was filed at least 365 days prior to the employee’s six-year anniversary in H-1B
      status; or
    2. An I-140 Immigrant Petition was filed at least 365 days prior the employee’s six-year anniversary in H-1B status.

This amendment (if passed) could help employers retain a higher percentage of H-1B employees who they have sponsored for a green card under the EB-3
category as professionals and who are destined to wait for their immigrant visas for years. Many H-1B employees in these circumstances reach a point when
they are tired of waiting for their immigrant visas and dealing with hardships caused by their spouse’s inability to work. As a result, they start seeking
opportunities with other employers who are willing to sponsor them for a green card under the EB-2 category, which has a shorter waiting period for
immigrant visas or no waiting period at all. When H-4 spouses are able to work in the U.S., hopefully, waiting for immigrant visas would be less burdensome
for H-1B employees and they would be more committed to continue working for employers, who have already sponsored them for a green card.

If this proposed amendment becomes a law, employers would be able to help alleviate hardships on H-1B employees, caused by their spouses’ inability to work
in the U.S., by initiating the green card application sponsorship for such employees as soon as the circumstances allow.

Stay tuned for an update on this proposed amendment.


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