When And In Which Form The H-4 Employment Authorization Rule Will Come Out?

On May 6, 2014, the Department of Homeland Security (DHS) announced the publication of a proposed rule to extend employment authorization to dependent spouses (not dependent children) of certain H-1B workers. On May 12, 2014, DHS published the Notice of Proposed Rulemaking (“NPRM”) in the Federal Register. The NPRM was subject to a sixty-day public comment period which ended on July 11, 2014. More than 12,000 comments were received. At present, DHS is reviewing those comments to finalize the rule.

So, the obvious questions are: (1) when and in which form the final rule is going to come out; and (2) when it will become effective? Before discussing that, it is important to briefly discuss the proposed rule and some of the comments received so far, and how those may or may not impact the final rule.

The Proposed Rule

The change proposed by DHS would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment. Eligible individuals would include H-4 dependent spouses of principal H-1B workers who: (1) Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or (2) Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act.

AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit. Specifically AC21 §§106(a) and (b) provide for a one-year extension of H-1B status beyond the six-year limitation established by INA §214(g)(4) if the H-1B nonimmigrant is the beneficiary of a labor certification application or an I-140 petition that has been pending for at least 365 days prior to reaching the end of the sixth year of H-1B status.

Specifically, DHS is proposing to limit employment authorization to H-4 dependent spouses only during AC21 extension periods granted to the H-1B principal worker or after the H-1B principal has obtained an approved Immigrant Petition for Alien Worker. In essence, DHS is proposing to provide benefits to those H-1B nonimmigrants who have demonstrated intent to permanently contribute to and participate in the U.S. economy and who have already made significant strides towards achieving the ability to do so upon being granted lawful permanent resident status. DHS also believes that tying the H-4 spouse employment authorization to such H-1B nonimmigrants would allow for more accurate identification of H-1B nonimmigrants who are on the path to becoming LPRs pursuant to their employment, and avoid the encouraging of “frivolous” filings.

Expanding employment authorization eligibility to all H-4 dependent spouses?

One of the comments submitted by stakeholders, including American Immigration Lawyers Association (AILA), asked for expanding employment authorization eligibility to all H-4 dependent spouses. While proposing the rule, DHS rejected this alternative as overbroad, since such an alternative would offer eligibility for employment authorization to those spouses of nonimmigrant workers who have not taken steps to demonstrate a desire to continue to remain in and contribute to the U.S. economy by seeking lawful permanent residence. Further, based on DHS reasoning, in enacting AC21, Congress was especially concerned with avoiding the disruption to U.S. businesses caused by the required departure of H-1B nonimmigrant workers (for whom the businesses intended to file employment-based immigrant visa petitions) upon the expiration of workers’ maximum six-year period of authorized stay.

How long the H-4 employment authorization will remain valid?

Another comment relates to the clarifi