Proposed Change in H-4 Work Authorization

Posted by Zuzana Geremes, Paralegal

Part of President Obama’s executive order on administrative immigration reforms promulgated on November 20, 2014, is the implementation of a change in the current regulations regarding employment authorization for certain spouses (H-4 dependents) of foreign nationals working in the United States on H-1B visas.

Under the existing regulations, the spouse of an H-1B specialty worker is eligible to receive an H-4 visa. Although the H-4 visa permits the spouse of the H-1B specialty worker to temporarily reside in the United States with his or her spouse, the H-4 visa holder is not authorized to work in the United States during this time.

A change to the current regulations regarding the H-4 dependents’ work authorization was first announced on May 6, 2014 by the Obama Administration and the Department of Homeland Security (DHS). According to the proposal, employment authorization would be granted to H-4 dependents of certain specific H-1B visa holders, namely to those H-4 spouses whose H-1B spouse’s employer has begun the process of sponsoring the H-1B worker for lawful permanent residency (green card) and the H-1B worker has been granted an extension of H-1B status beyond the normal six-year limit imposed on H-1B workers.

The period during which the United States Citizenship and Immigration Services (USCIS) was seeking public written comments regarding the proposed change concluded on July 11, 2014.

The USCIS is expected to codify the proposed change regarding the H-4 dependents’ employment in a regulation, and the agency is expected to finalize the regulation in December 2014 or January 2015.

The extent to which the proposed change will be implemented is, however, as of now, anybody’s guess. The USCIS might codify the regulation to the same extent as originally proposed in May 2014, or it might expand the H-4 dependents’ work authorization beyond the originally proposed change.