Obama Administration Proposes Rule Change to Allow Work Authorization for Spouses of Certain H-1B Workers in the United States

Contributed by Zuzana Geremes, Paralegal

On May 6, 2014, the Obama Administration and the Department of Homeland Security (DHS) announced a proposed change to the current regulations regarding employment authorization for certain spouses of foreign nationals working in the United States on H-1B visas. The stated goal of this rule change is to maintain U.S. economic competitiveness and to attract skilled talent that the United States might otherwise be losing to countries with less draconian immigration laws.

Under the current 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.

This current framework is problematic for many spouses, who frequently have skills and advanced education, but are not authorized to work in the United States, causing their careers to stall.

Importantly, the proposed rule change does not provide employment authorization for all spouses of H-1B visa holders in the United States under the H-4 visa category.

The proposed rule only provides for employment authorization for H-4 spouses if their H-1B spouse’s employer has begun the process of sponsoring the H-1B worker for lawful permanent residence (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.

Specifically, the proposed change would affect H-4 spouses of the following H-1B nonimmigrant workers:

(1) H-1B workers who are beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; and

(2) H-1B workers who have been granted an extension of their authorized period of stay in the United States under AC21 (American Competitiveness in the Twenty-First Century Act of 2000), i.e. H-1B workers who are permitted to remain and work in the US past the six-year H-1B limit.

For more information, please contact our office at (303) 371-1822.