DHS Publishes Final Rule on Eligibility for Work Authorization for H-4 Spouses

by Prerna Lal

The Department of Homeland Security announced today that effective May 26, 2015, spouses on H-4 visas can apply for employment eligibility. The news is welcome relief for thousands of H-4 visa spouses who have been lawfully present in the U.S. but unable to work legally.

The rule change would allow H-4 spouses to apply for employment authorization if their H-1B spouse is a beneficiary of an approved I-140 immigrant petition or, if the H-1B spouse has been granted an extension of stay based upon the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

In 2013, a total of 96,753 individuals were granted H-4 visas. Of those, approximately 86% were from Asian countries. Six of the top ten countries of origin for H-4 dependents are Asian countries, namely India, China, the Philippines, South Korea, Japan, and Pakistan — with individuals from India making up the overwhelming majority of H-4 visa holders.

Unfortunately, H-4 visa holders have had to face numerous challenges in the U.S., including the inability to obtain work authorization. This barrier to legal employment forbade spouses from contributing financially to their household as well as to our nation’s economy. It also prevented them from using the full scope of their educational and professional skills, and impeded their full participation in American society. Furthermore, the inability of H-4 dependents to work or contribute to their household income often places an undue burden on the H-1B worker and on their family as a whole, making it difficult for many to remain in the United States.

The new rule will allow the spouses of many H-1B workers to obtain work authorization, build sustainable lives in the U.S., integrate and contribute to the economy. DHS estimates that the number of people who would benefit from this change would be “as high as 179,600 in the first year and 55,000 annually in subsequent years.”

While this change is a welcome step in the right direction, it is exceedingly narrow and only provides work authorization to a limited number of H-4 visa holders. As part of future administrative relief, DHS should consider extending work authorization benefits to all H-4 visa holders. This includes the children of H-1B workers, who often age out of eligibility for lawful permanent residence due to the significant employment-visa backlog, and are unable to benefit from programs such as Deferred Action for Childhood Arrivals (DACA) due to their lawful status as of June 15, 2012.

Doing so would allow the United States to retain high-skilled immigrants, and ensure family unity for many hard-working immigrant families.

In the meantime, H-4 spouses eligible for the new rule should gear up to apply for the benefit by collecting the necessary fees ($380) and documentation to show their eligibility.

Prerna Lal is a staff attorney and the 2014–2016 NAPABA Law Foundation Partners and In-House Counsel Community Law Fellow at Advancing Justice | AAJC

Fighting for civil rights for all and working to empower #AAPIs to participate in our democracy. Follow: @johncyangdc @tao_minnis @meganessaheb

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