A year ago, the Department of Homeland Security published a Notice of Proposed Rule which, if implemented, would have made some spouses of H-1B visa holders eligible to work in the United States. The proposal at that time would have extended employment authorization only to those H-4 visa holders whose H-1B spouse had obtained an extension beyond the six-year limit under either 104(c) or 106(a) of AC-21. No action has been taken on that proposed rule since March 2013. However, a new announcement from the Department of Homeland Security, which followed an earlier White House statement promoting President Obama’s commitment to entrepreneurs, indicates that a new Notice of Proposed Rule will be forthcoming. The importance of this new proposal lies in the details. According to the DHS statement, this proposal would extend employment authorization to even more H-4 visa holders. The new provision allows an H-4 spouse of an H-1B holder with an approved I-140 petition to also obtain an EAD. This is huge! This version of the rule would mean that an H-4 holder does not need to wait until the H-1B holder has exhausted the six year limit to be eligible. As soon as the H-1B holder has an approved I-140, the H-4 holder becomes eligible for employment authorization, even if the H-1B holder has only spent one year in H-1B status.
Our office has previously set forth several reasons why starting the green card process early is critical. First, in most cases the H-1B six year limit cannot be exceeded unless a Labor Certification has been filed before the end of the fifth year. Second, it is helpful to allow enough time for both the Labor Certification and I-140 Immigrant Petition to be approved before the six year limit is reached. This will allow the H-1B to be extended for an additional three years instead of only one year. Third, denials happen. If the process is started early enough, a denial will not be fatal. Whereas, a denial when the six-year limit is near can mean that the H-1B cannot be extended and leaving the country may be the only option. Now there is an even better reason to begin: if this proposal is implemented, those with an approved I-140 will have spouses who can work!
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.