May 16, 2014

H-4 Visas: What You Need to Know About Proposed Work Permits for H-4 Spouses

The government’s recent announcement of its proposal to offer employment authorization to H-4 dependent spouses is exciting news. However, the first thing you should know is that this is only a proposed rule. No one can apply now. After the public has had the chance to comment on the proposed rule, the Department of HomeLand Security (DHS) can make the rule official and announce the procedures to apply for the work permits. The final rule may be the same or different from the proposed rule.

While waiting for the final outcome, here are some important details to know about the proposed rule:

  • Not all H-4 dependent spouses will qualify. H-4 children do not quality either. Instead, only the following two groups will be eligible:
    • H-4 spouses of H-1B workers who have approved I-140 immigrant petitions. The approved I-140 petition can be based upon PERM labor certification (LC) and any of the EB-1 and EB-2 categories (extraordinary ability, outstanding researcher, national interest waiver, etc.)
    • H-4 spouses of H-1B workers whose H1B status was extended beyond the six-year limit pursuant to the American Competitiveness in the Twenty-First Century Act (AC21). AC21 offers this extension if
      a) the H-1B worker’s PERM labor certification (LC) was filed with the Department of Labor by the end of the 5th year in H-1B status;
      b) an I-140 petition (in cases where an LC is not required such as national interest waiver) was filed by the end of the 5th year in H-1B status); or
      c) the LC and I-140 are approved but no visa number is available because the priority date is not current.
  • If qualified, the H-4 dependent spouse must apply for an employment authorization document (EAD) and wait for its approval before starting work. Typically, it takes 90 days to get an EAD. DHS plans to charge a $380 filing fee for the EAD.
  • DHS estimates that initially 100,600 H-4 spouses will be eligible under this rule, and about 39,500 will be eligible each year.
  • You have an opportunity to comment on the proposed rule and make suggestions for improvement. Just follow the the instructions provided on the Federal Register website. The deadline for comments is July 11, 2014.

Cowles & Thompson Immigration Practice Group will continue to monitor this proposed rule. If you would like updates as they become available, send an email to immigration@cowlesthompson.com.

The information provided in this article is intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.