In February 2012, the Obama Administration issued a proposed regulation which would provide employment authorization for some spouses of H-1B visa holders. Now, more than two years later, those regulations are about to become effective.
Currently, spouses of H-1B visa holders cannot qualify for employment authorization. This situation has caused frustration for H-4 spouses who find themselves in the U.S., with no lawful means of entering the workforce, or contributing household income or using their skills, education and experience. With the implementation of the new regulation, some H-4 spouses will now be eligible to apply for an Employment Authorization Document (EAD).
Notably, the regulations limit the EAD to a narrow class of H-4 visa holders. Specifically, only H-4’s who are dependents of H-1B visa holders with approved I-140’s or who have extensions of H-1B based on AC-21 can qualify for employment authorization. This means that tens of thousands of H-4’s who do not meet this requirement will still be barred from working lawfully in the U.S.
In addition to the H-4 EAD rules, the CIS has announced two other important rule changes for high skilled workers. One aligns the rules for holders of H-1B1 (Chile/Singapore Free Trade Agreement) and E-3 (Australian specialty workers) visas with H-1B provisions by providing for an automatic extension of employment authorization while an extension is pending. The other involves persons applying for permanent residence in the “outstanding professor or researcher” category and expands the list of evidentiary criteria to allow “other comparable evidence” of international recognition.
These proposed rules mark the latest effort by the Obama Administration to forge ahead with immigration reform, even without Congressional support. While some consider this kind of executive action on immigration to be contentious, faced with firm resistance from the right and pressure from pro-immigrant groups, the Administration has signaled its intent to use the authority of the executive to try to effect change on immigration issues.
There is a 60-day period for public comment on the regulations. For more information and to let your voice be heard, please click here: http://www.regulations.gov/#!docketDetail;D=USCIS-2010-0017.