Department of Homeland Security to Grant Employment Authorization Documents to Select H-4 Visa Status Spouses of H1-B Nonimmigrants

On Tuesday, February 24, the Department of Homeland Security (“DHS”) announced that it will be granting Employment Authorization Documents (“EAD”) to certain H-4 visa status spouses of H-1B nonimmigrants beginning May 26, 2015. H-4 visas, a status granted to legal dependents of H-1B visa holders, traditionally grant an individual full rights in terms of obtaining a driver’s license and residing legally in the United States, but prohibit employment of any sort. Under the new rule, not all H-4 visa holders will qualify. To be eligible for an EAD, the spouse of the H1-B nonimmigrant must fall into one of the following categories. The applicant must:

– Be the principal beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140)

– Have been granted H-1B status in the United States under the American Competitiveness in the 21st Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act.

To apply, qualified H-4 visa holders must file Form I-765, Application for Employment Authorization, and pay a $380 fee.

This status has been referred to as the “Golden Cage” and “The Curse,” amongst other things, due to its limitations regarding work authorization and the burden it puts on families who are forced to rely on one income. The DHS cited this as a primary rationale for the change, given that many highly skilled spouses of H-1B visa holders are legally in the United States, but are prohibited from having the opportunity to benefit society and their families through the use of their skills.

While the expansion of H-4 visas to include EADs was a component of President Obama’s Executive Order issued in November 2014, this particular action comes as the final rule to a proposal that originated in May 2014. This rule is separate from the ongoing litigation pertaining to President Obama’s Executive Order. In that action, a federal judge in Texas issued an injunctive order temporarily blocking the implementation of certain provisions of the executive action on February 16, 2015.

The final rule can be found here (link to – https://www.federalregister.gov/articles/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov#h-8).

If you would like more information on this subject or assistance in preparing an application for the May 26, 2015 initial acceptance date, please contact the Immigration Practice Group at (412) 261-1600. Learn more about Leech Tishman’s Immigration Practice Group here.

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