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H-4 Work Permits Are Here, But Why Not For Everyone? Pt 2. By Roger Algase

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In Part 1 (posted on March 7) of my comments on the new H-4 work permission which will be available shortly for spouses of certain H-1B specialty workers, I discussed the limitations on this policy, something that was initially downplayed in at least a few published comments in the wake of the euphoria that initially greeted the DHS's announcement of the new policy in the February 25 Federal Register.

See:

https://federalregister.gov/articles...pi+subscripti#...

In essence, the new employment authorization will not be available to all H-4 spouses, but only to those whose H-1B husbands or wives are already well along in the green card process and who come within the relatively limited provisions of Sections 104 or 106 of AC21.

To summarize the new policy, which was discussed in detail in my March 7 post, only H-4 status holders whose spouses are the beneficiaries of approved I-140 petitions under Section 104 or have already been approved for an extension H-1B status beyond the initial six years under Section 106 (as opposed merely to being eligible for the extension according to the language of that section) will be granted work permission (beginning on May 26).

For all other H-4 spouses of H-1B employees, there is no change in the rules. As far as work permission is concerned, they are out of luck (unless they are eligible for H-1B or some other work permission in their own right, as at present).

This raises the question: if granting H-4 spouses work permission is such a wonderful idea, as the DHS argues that it is, and justifiably so - see below- why limit this benefit to only a limited class of H-4 status holders? Let us look at the DHS's own justifications for adopting this restriction, as explained in the above cited 74-page Federal Register notice.

The DHS begins with a general explanation for the new policy, under the heading: Purpose of the Regulatory Action: (page 8 of the 74-page notice)

"The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardships for the families of H-1B nonimmigrants. Such hardships may increase the longer these families remain in the United States. In many cases, H-1B non-immigrants and their families in the United States must wait for many years for employment-based immigrant visas to become available. These waiting periods increase the disincentives for H-1B non-immigrants to pursue LPR status and thus increase the difficulties that U.S. employers have in retaining highly educated and highly skilled non-immigrant workers."

The Federal Register notice continues:

"These difficulties can be particularly acute in cases where an H-1B nonimmigrant's family is experiencing economic strain or other stresses from the H-4 dependent spouse's inability to seek employment in the United States. Retaining highly skilled workers who intend to acquire LRR status is important to U.S. businesses and to the Nation given the contributions of these individuals to U.S. businesses and the U.S. economy. These individuals, for example, contribute to advances in entrepreneurship and research and development, which are highly correlated with overall economic growth and job creation."

On page 16 of the above notice, the DHS adds additional emphasis to the arguments in favor of allowing H-4 dependent spouses to work:

"The comments supporting the proposed rule largely underscored the socioeconomic benefits the rule would have for certain H-1B non-immigrants and their H-4 dependent spouses. For example, several commentators noted that while they knew about the restriction on H-4 employment before coming to the United States, they did not anticipate such a long wait for LPR status or the emotional toll that long-term unemployment would take on them and their families. Other commentators noted that they have not been able to apply for a social security card or a driver's license in certain states because they did not have an Employment Authorization document [EAD]." (Bold added.)

With respect to the last sentence quoted above, the argument about inability to obtain a social security card or driver's license through lack of an EAD would not appear to make any logical sense, because H-1B principals do not receive EAD's but only I-797 petition approval notices from USCIS, and yet there are few, if any instances of their being unable to receive social security cards through lack of an EAD.

The Federal Register notice continues (also on page 16):

"Approximately 200 commentators noted that the current policy of allowing only the H-1B nonimmigrant to work often led to family separation or the decision to immigrate to other countries that authorize employment for dependent spouses."

Given the strong arguments that the DHS presents above for allowing H-4 dependent spouses to work, what is the rationale for restricting this permission to the spouses of H-1B workers who are being sponsored for green cards, and who, even more restrictively, are already well advanced in that process?

Are not H-1B workers who have not yet been sponsored for green cards, or who may never be, also benefiting the US economy with their high levels of skill and education? Do their families not suffer from the same economic pressures, possible family separation and other disincentives to accepting work in the United States as their peers who are being sponsored for permanent residence?

These questions will be explored further in Part 3 of this three-part series.
________________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping employment-based and family-based immigrants overcome the obstacles of our immigration system and attain their goals in America. Roger welcomes questions at algaselex@gmail.com



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Updated 04-09-2015 at 11:44 AM by ImmigrationLawBlogs

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