May 7, 2014

Yesterday, the U.S. Department of Homeland Security announced that it will publish two proposed rules this week.  One of the rules proposes to extend employment authorization to the dependent spouses of certain H-1B workers.  In a press release dated May 6, 2014, DHS stated, “The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.”

The Notice of Proposed Rulemaking will soon be published in the Federal Register.  DHS will accept public comment on the proposed rules through the following website – www.regulations.gov.

Who Qualifies?

If the proposed rule goes into effect, you will qualify for employment authorization if:

• You are an H-4 dependent spouse (dependent children will not qualify); and
• The principal H-1B worker:

o   Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or

o   Has been granted an extension of his/her authorized period of stay in the U.S. under the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”).

How the New Rule Benefits Our Clients

The new rule will benefit our EB-2 NIW clients on H-1B nonimmigrant status under two circumstances:

1. Clients on H-1B nonimmigrant status from India and China with an approved EB-2 NIW
   • Such clients are not eligible to file an I-485 because their I-140 priority date is not current.  However, they are able to extend their H-1B visa status in three-year increments until their priority date is current.  Under the new rule, they will also be able to apply for employment authorization for their H-4 dependent spouse such that their spouse will also be able to work in the U.S. while the family waits for the I-140 priority date to become current.
2. Clients on H-1B nonimmigrant status from India and China with an EB-2 NIW I-140 petition pending for more than 365 days at the time they reach the six-year limit for their H-1B
   • Such clients are eligible to extend their H-1B visa status in one-year increments beyond the six-year limit.  Under the new rule, they will also be able to apply for employment authorization for their H-4 dependent spouse such that their spouse will also be able to work in the U.S. while the I-140 petitioner waits for adjudication of his/her EB-2 NIW petition.

Please see here to contact our firm for more information.

You can read the full DHS press release here.

 

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North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

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