Certain H-4 Spouses to Qualify for Employment Authorization

On February 25, 2015, U.S. Citizenship and Immigration Services published its final rule extending employment authorization to certain H-4 spouses of H-1B workers with approved I-140 immigrant petitions or in H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000, also known as “AC-21.” Up until the date of the regulatory amendment, H-4 spouses without a pending application for adjustment of status could not qualify for an Employment Authorization Document (EAD) by virtue of their dependent status, resulting in personal and economic hardships to the many families stuck in green card wait limbo.

The recent rule change not only promises to bring relief to these families but also recognizes the importance to the United States and its economic future of retaining immigrants with key talents and entrepreneurial skills. By facilitating the permanent residency process for H-1B nonimmigrants, the United States hopes to modernize its immigration policies and make it the destination of choice for the best and brightest minds. After all, other countries already offer many incentives to immigrants as an encouragement to stimulate economic growth.

To my mind, the rule change is at best a nod to the business friendly immigration policy that is really needed to insure the long-term economic competitiveness of the United States. The new rule does not help H-4 dependents whose H-1B spouses are in the early stages of the process of applying for permanent residency, and are therefore ineligible for an extension of H-1B status under AC-21, or whose employers have not yet obtained I-140 approvals. Those H-4 individuals should also qualify for work permits immediately, rather than face an interminable wait for their H-1B spouse’s permanent residency applications to ripen, or rot as the case may be, before they can apply. There is simply no logical reason to allow employment authorization for some H-4 dependents and deny it to others. It can only be hoped that a future rule making or legislation will address this deficiency and thereby put the United States more on par with its economic competitors.