DHS Proposal for H4 Spouse Work Authorization

DHS announced proposals for H4 spouse work authorization on May 6, 2014. On May 12, 2014, the DHS published two proposed rules. The first was extension of employment authorization to H4 spouses of certain H1B workers. The second was enhancing opportunities for highly-skilled workers by removing obstacles to their remaining in the US.

Proposed Rule for H4 Spouse Work Authorization

The proposed H4 Spouse Work Authorization rule allows certain H4 spouses to request employment authorization. US businesses use the H1B to employ foreign workers in specialty occupations. Employers often apply for a green card for H1B workers. LPR’s may generally become naturalized US citizens after five years. As of May 2014, H4 dependents weren’t eligible for work authorization. This would allow certain H4 spouses  to request employment authorization if the principal H1B has started the employment green card process.

Eligible individuals include H4 dependent spouses of principal H1B workers who:

• Are beneficiaries of an approved I-140; or,
• Have been granted an extension of their authorized period of stay in the US under AC21 as amended by the 21st Century DOJ Appropriations Authorization Act. AC21 permits H1B workers seeking LPR status to work and remain in the US beyond the H1B six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers

This regulatory change enhances opportunities for these workers by removing obstacles to their remaining in the US. (See Enhancing Opportunities for High-Skilled Specialty Occupation Professionals for proposed rule.)

Changes in Regulations for H1B1 (Chile and Singapore), E-3 (Australia) and CW-1 Workers

Specifically, the change would:

• Update regulations to include H1B1 and E-3 professionals in the list of workers authorized for employment incident to status with a specific employer.
• Clarify that H1B1 and principal E-3 holders may work without a separate application for employment authorization;
• Allow E-3, H1B1 and CW-1 workers up to 240 days of continued work authorization beyond the expiration date on their I-94 while an extension is pending.

This rule would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H1B1) and Australia (E-3), and Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of E-2, H1B1 or CW-1 workers must generally file a petition requesting extension of status well before expiration of their current status.

Expansion of Evidentiary Criteria for EB1 Outstanding Professors or Researchers

This proposal would also expand evidentiary criteria for EB1 outstanding professors or researchers to allow submission of evidence comparable to other forms of evidence listed in the regulations. This proposal harmonizes the EB1 outstanding professors and researchers with other EB1 categories that allow for comparable evidence.