New Immigration Rule: Work Permits for Spouses of H-1B Visa Holders

While the debate on comprehensive immigration reform has stalled in congress, the Department of Homeland Security (DHS) announced a new set of rules on Tuesday which could provide work permits for upwards of 90,000 people. The main focus of these regulatory changes is to retain high-skilled workers by providing employment authorization for holders of the H-4 visa, while streamlining several other processes.

The H-1B visa is designed to employ foreign workers in occupations which require special technical or theoretical expertise in fields such as engineering, science, or computer programming. Under previous regulations, dependents of H-1B workers – holding the H-4 visa, had a legal status but were unable to obtain work permits. The new rules would extend employment authorization to eligible H-4 visa holders.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) which permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

To enhance opportunities for highly-skilled workers, DHS plans to amend several other rules. A summary of the proposed changes can be found below.

  • Regulations will now include: nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, while an extension request is pending.
  • The list of evidentiary criteria will be expanded for applicants in the employment-based first preference (EB-1) category.

While this rule change does not automatically grant work permission to H-4 visa holders, it signals an important step in addressing the backlogs of the employment-based immigration system. This set of rules will be published in the Federal Registrar followed by a period of public comments. We expect to be able to file applications for new work permits shortly thereafter.

Stay tuned for more updates or contact us if you have specific questions!