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Carl Shusterman's Immigration Update

Employment Authorization for H-4 Spouses

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http://shusterman.com/images/h4-spouses.jpg On May 12, 2014, the Department of Homeland Security (DHS) published a proposed regulation which would permit certain H-4 spouses of H-1B professionals to apply for Employment Authorization Documents (EADs).

Under the proposed regulation, the following classes of H-4 spouses would qualify for EADs:

1. Where the H-1B spouse is the beneficiary of an approved I-140 EB visa petition; and

2. Where the H-1B spouse has been granted a post-6th year H-1B extension under AC-21.

While this is great news for the H-4 spouses of H-1B visa holders who are currently in the green card process, it is not as broad of the regulations which allow all spouses of persons in E-2 and L-1 status to obtain EADs. Additionally, if the H-1B spouse has an approved I-130 family-based visa petition, his H-4 spouse will not be eligible to apply for an EAD.

My advice is make sure your employer submits a PERM application, or an I-140 if a PERM application is not required, for the H-1B spouse during the first year of his/her employment. This not only put the family on the track for permanent residence, but will accelerate the date when the H-4 can be employed.

DHS estimates that 100,000 H-4 spouses would be eligible for EADs in the first year and that about 36,000 would be eligible in each subsequent year.

Another proposed regulation would allow persons in H-1B1 status (from Chile and Singapore), E-3 professionals (from Australia) and CW-1 workers (from the Commonwealth of the Northern Mariana Islands) the same benefits as H-1B professionals when they apply for a extension of stay. Currently, H-1B and L-1 workers are permitted to continue to be employed for 240 days simply by applying for an extension of stay. The proposed regulation would grant H-1B1, E-3 and CW-1 workers the same benefit.

The proposed regulation would also permit EB-1 Outstanding Professors and Researchers to submit to submit evidence which is comparable to that which is listed in existing regulations.

The public comment period for the proposed H-4 regulation ends on July 11, 2014.

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Updated 05-14-2014 at 01:06 PM by CShusterman

Comments

  1. Unregistered_123's Avatar
    How would this rule apply/effect eligible spouses who are pursuing masters degree? For cases like these immigration status could likely be F1/OPT.
  2. Unregistered1's Avatar
    Where did you see that spouses of H1b holders with approved I-130 family-based petitions are not eligible?
  3. Unregistered_123's Avatar
    Quote Originally Posted by Unregistered1
    Where did you see that spouses of H1b holders with approved I-130 family-based petitions are not eligible?
    There are many cases where H1b holder is on 6+ years (with approved I140 & waiting on priority date) along with his/her spouse in USA. In those case, i guess, they do not need to submit the I-130 and wait for its approval before submitting the adjustment of status application (like I485).
  4. CShusterman's Avatar
    Quote Originally Posted by Unregistered1
    Where did you see that spouses of H1b holders with approved I-130 family-based petitions are not eligible?
    They are not included in the proposed regulation.
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