7500 Comments Received for H-4 Work Authorization Regulation

The comment period for a USCIS regulation which would allow certain H-4 status holders to receive work authorization ended on July 11, 2014. 7,500 comments were received. These will be reviewed and considered by DHS to determine whether the proposal can be implemented as is or will need to be revised in response to the comments.

The White House’s stated goal of the regulation is to lessen the financial burden on H-1B families during the green card process; thus minimizing disruptions to U.S. employers and furthering the goals of attracting and retaining highly skilled foreign workers. It is estimated that upon implementation, 100,600 people will be eligible during the first year with 35,900 new applicants each year.

Under current law, no work authorization is available for any H-4 nonimmigrant. (H-4s). H-4s are the spouses and children (under 21 years of age) of H-1B specialty workers. Under the proposed version of the regulation, only those H-4 spouses of H-1B workers who have reached certain milestones in the lengthy green card process, would be eligible to apply for work authorization: The H-1B worker must either have an approved I-140, Immigrant Petition or have been granted an extension of H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). These extensions are granted to H-1B workers who have been in the green card process for more than 365 days, but do not yet have an I-140 approved.

Suggested changes to the regulation made by the American Immigration Lawyers Association (AILA), include the following:

Expand Eligibility for Work Authorization to All H-4s: AILA argues that if one of the goals of the regulation is to attract more highly skilled workers, then there is no reason to treat the spouses of H-1B workers differently than the spouses of L-1 workers or E-1, E-2 and E-3 workers, all of whom are authorized to work in the United States. Allowing the benefit to all H-4s would also bring US immigration policy more in line with our international economic competitors such as Canada, and the UK, which both allow spouses of highly skilled workers to work when accompanying spouses on foreign assignments.

Expand Eligibility for Work Authorization to A Larger Pool of H-4s: If USCIS will not expand the program to cover all H-4s, AILA comments that it should at least be expanded to include the spouses of H-1B workers who have a labor certification or I-140 pending for less than 365 days. AILA reasons that if an employer has taken the determinative step of sponsoring an H-1B worker for permanent residence by filing a PERM or I-140 application, that is sufficient to demonstrate an intent to move forward with green card sponsorship and to see the process through. AILA also urges the administration to include H-4 children in the regulation. Work authorization would be especially beneficial for high school and college students holding H-4 status, allowing them to more fully integrate into their communities and American society.

AILA also makes several practical recommendations for making the regulation more user-friendly while reducing the work of USCIS:

  • Employment Authorization Documents (EADs) should be issued for the duration of the H-4 status, not the normal 1 or 2 year term.
  • Extend the EAD filing window from 120 days prior to expiration to 180 days prior to expiration: This change will facilitate the filing of both an H-4 extension and EAD extension simultaneously, as the regulation currently allows.
  • Make plain in the regulation that concurrent filing of H-4 change of status applications and EAD applications is permitted.

7500 is a lot of comments, and by law USCIS is required to review and consider them all. There is no time limit requirement on the review period. Once reviewed, USCIS must determine what if any of the comments to incorporate into the final rule. Once the final rule is drafted, it may be sent to the Office of Management and Budget (if considered a significant rule) and then published in the Federal Register. At the time of publication, the rule will give an effective date, which would be the first date that EAD applications could be received for adjudication at USCIS. The effective date would likely be 30 days from publication, but no more than 60 days. With so many comments, and several steps left in the process, we anticipate that the rule will be published midway through the 4th quarter of 2014.

If you have any questions or believe you may be eligible once the rule goes into effect, please call Valentine Brown (215) 979-1840.

About vbimmigration

For More Information Call 215 979 1840 Immigration Law Partner at Duane Morris, LLP. 20 years representing companies and individuals in all aspects of immigration law. H-1Bs, L-1s, TNs, PERM, Global immigration; compliance; working visas; green cards; consular processing citizenship and deportation.
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