May 16, 2014
In its ongoing effort to attract the best and brightest from around the world to the United States, the Department of Homeland Security (DHS) formally issued a new proposed regulation on May 12, 2014, that would allow certain spouses of H-1B nonimmigrants the ability to obtain a work permit. The proposed rule change would greatly assist families who are hampered from fully realizing the American dream because of the excessively long process for obtaining permanent residency to the U.S.
With this proposed rule, the DHS is acknowledging that the current immigration system unreasonably imposes burdens that may discourage highly valuable individuals and families from wishing to live and work in the U.S. That is because the current system does not allow the spouse of an H-1B nonimmigrant to obtain a work permit. Rather, spouses are allowed to live in the U.S. as an H-4 nonimmigrant, but are unable to work unless they themselves can be sponsored for some type of work visa.
For families where both spouses have successful careers, the difficulty in having both spouses work results in many families determining that the U.S. may not be the proper home for them. For those who do make the U.S. their home, the inability for the H-4 spouse to work creates economic hardships for the family and wasted talent that could benefit the U.S.
In recognition, the DHS is now seeking to remedy this by proposing that certain H-4 spouses of H-1B nonimmigrants be granted a work permit. If allowed, the work permit would allow the H-4 spouse to work for any company or individual in the U.S.
The proposed rule would apply only to H-1B families who are already in the process of obtaining permanent residency through an employment-based sponsorship. The DHS believes that this proposed rule change may therefore encourage families to move forward with the process for becoming a permanent resident through an employment-based petitioned sooner than later.
The first eligible group would be H-4 spouses whose H-1B spouse has been granted an H-1B extension under the American Competitiveness in the Twenty-First Century Act 2000 (AC21). This includes H-1B nonimimgrants who are granted H-1B status beyond the regular 6-year cap because they have a Form ETA 9089 Application for Permanent Employment Certification, also known as a labor certification application, or Form I-140 Immigrant Petition for Alien Worker pending on their behalf for more than 365 days. The second eligible group would be H-4 spouses whose H-1B spouse is the beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker.
The DHS is now accepting comments from the public about the proposed rule until July 11, 2014. The DHS will then issue a final rule incorporating changes deemed appropriate based on the comments in order to implement the issuance of work permits for certain H-4 spouses. In light of this, H-1B nonimmigrants are encouraged to move forward with the process of obtaining lawful permanent residency through an employment-based sponsorship in order to take advantage of the ability to secure a work permit for an H-4 spouse in the hopefully not so distant future.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.