Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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Long-Expected Move to Eliminate H-4 Employment Authorization – Proposed Rule

The Department of Homeland Security has sent to the Office of Management and Budget a proposed rule to eliminate the availability of employment authorization to H-4 spouses of H-1B holders.

The H-4 Employment Authorization allows – in limited circumstances – spouses of H-1B workers to obtain employment authorization. Unlike rules allowing employment authorization for derivative spouses of L-1 and E-2 visas holders among others, where the simple fact of having the derivative visa is enough to qualify, an H-4 spouse can only get employment authorization if a permanent residence case for the H-1B is not only on file, but has reached a certain stage where only immigrant visa unavailability prevents filing of the final portion of the case. Given the many, many Indian nationals caught in long backlogs for immigrant visa availability.

The rule, implemented in 2015 by the Obama administration, has long been a target of this administration, despite the limited circumstances where it applies and the relatively limited number of applicants. So, this move isn’t a surprise – but it is a slap in the face to thousands of companies which have been depending on workers employed under this form of authorization, not to mention to the H-4 spouses who have been following the law to finally try to build a career - often after many years where they had few options but to remain at home.

We don’t yet know when the rule will be published or become effective, and we don’t yet know whether those currently covered will be “grandfathered” – permitted to continue under the existing rules.

This would be a good time for H-4 spouses using this type of employment authorization to consult an attorney to explore other options.