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The Department of Homeland Security is planning to issue new regulations tomorrow (February 25) allowing certain dependent spouses who are in H-4 status the ability to apply for work authority, beginning May 26, 2015.  These amendments deliver one of the promises from President Obama at the end of 2014 to overhaul and modernize certain aspects of the country’s immigration system.

Employers are often familiar with the H-1B visa. H-1B visas are widely used by companies seeking to employ highly skilled foreign nationals, most of whom are graduates from U.S. universities to work in STEM related occupations. Spouses of these H-1B recipients are allowed to remain in the U.S. on H-4 status, but historically have not been granted the ability to work.

Assuming the courts do not intervene, as of May 26 certain dependent H-4 spouses will be able to apply for work authority by filing the Form I-765, but only if the primary H-1B holder meets either of the following criteria:

  • He/she is the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

  • He/she has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

This essentially means that the current H-1B visa holder must be well into the process of Green Card sponsorship by his/her employer before their dependent H-4 spouse will be eligible to apply for work authority.  The pool of eligible H-4 spouses who could seek work authority will thus be limited to situations where Green Card sponsorship has been sought.

As a reminder, H-1B applications for FY2016 can be filed as soon as April 1, 2015.  If past years are any indication applications should be filed on April 1 to give the company a chance at being selected in the visa lottery.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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