View Rule

View EO 12866 Meetings Printer-Friendly Version     Download RIN Data in XML

DHS/USCIS RIN: 1615-AB92 Publication ID: 2012 
Title: Employment Authorization for Certain H-4 Dependent Spouses 
Abstract: The Department of Homeland Security (DHS) proposes to amend its regulations by extending the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies. 
Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 8 CFR 274a.12(c)     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: INA sec 214(a)(1) 8 USC 1184(a)(1)    INA 274A(h)(3) 8 USC 1324a(h)(3)    8 CFR 274a.12(c)    sec 104(c) of PL 106-313    sec 106(a) of PL 106-313    ...   
Legal Deadline:  None

Statement of Need: Congress intended that the AC21 provisions allowing for extension of H-1B status past the 6th year for workers who are the beneficiaries of certain pending or approved employment-based immigrant petitions or labor certification applications would minimize the disruption to U.S. businesses employing H-1B workers that would result if such workers were required to leave the United States. DHS recognizes that the limitation on the period of stay is not the only event that could cause an H-1B worker to leave his or her employment and cause disruption to the employer's business, inclusive of the loss of significant time and money invested in the immigration process. The rule, as proposed by this NPRM, is intended to mitigate some of the negative economic effects of limiting H-1B households to one income during lengthy waiting periods in the adjustment of status process. Also, this rule will encourage H-1B skilled workers to not abandon their adjustment application because their H-4 spouse is unable to work.

Summary of the Legal Basis: Sections 103(a), and 274A(h)(3) of the Immigration and Nationality Act (INA) generally authorize the Secretary to provide for employment authorization for aliens in the United States. In addition, section 214(a)(1) of the INA authorizes the Secretary to prescribe regulations setting terms and conditions of admission of nonimmigrants.

Alternatives: An alternative considered by DHS was to permit employer authorization for all H-4 dependent spouses. In enacting AC21, Congress was especially concerned with avoiding the disruption to U.S. businesses caused by the required departure of H-1B workers (for whom the businesses intended to file employment-based immigrant visa petitions) upon the expiration of workers' maximum six-year period of authorized stay. Although the inability of an H-4 spouse to work may cause an H-1B worker to consider departing from the United States prior to his or her eligibility for an H-1B extension. This alternative was rejected in favor of the proposed process to limit employment authorization to the smaller sub-class of H-4 nonimmigrants who intend to remain in the United States permanently and who have been granted an extension of H status under the provisions of AC21.

Anticipated Costs and Benefits: The proposed changes would only impact spouses of H-1B workers who have been admitted or have extended their stay under the provisions of AC21. The costs of the rule would stem from filing fees and the opportunity costs of time associated with filing an Application for Employment Authorization for those eligible H-4 spouses who decide to seek employment while residing in the United States. Allowing certain H-4 spouses the opportunity to work would result in a negligible increase to the overall domestic labor force. The benefits of this rule are retaining highly-skilled persons who intend to adjust to lawful permanent resident status. This is important when considering the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which are highly correlated with overall economic growth and job creation. In addition, the proposed amendments would bring U.S. immigration laws more in line with other countries that seek to attract skilled foreign workers.

Action Date FR Cite
NPRM  03/00/2013 
Additional Information: Includes Retrospective Review under E.O. 13563.
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Small Entities Affected: No  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL:   Public Comment URL:  
RIN Data Printed in the FR: No 
Agency Contact:
Lori S. MacKenzie
Division Chief, Operations Policy & Stakeholder Communications, Immigrant Investor Program
Department of Homeland Security
U.S. Citizenship and Immigration Services
131 M Street NE.,
Washington, DC 20529-2200
Phone:202 357-9214