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The Department of Homeland Security (DHS) proposes to amend its regulations by extending the availability of employment authorization to certain H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment. 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.

Statement of Need:

Under current regulations, DHS does not list H-4 dependents (spouses and unmarried children under 21) of H-1B nonimmigrant workers among the classes of aliens eligible to work in the United States. See 8 CFR 274a.12. The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardship for the families of H-1B nonimmigrants the longer they remain in the United States. In many cases, for those H-1B nonimmigrants and their families who wish to remain permanently in the United States, the timeframe required for an H-1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years. As a result, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers. Retaining highly skilled persons who intend to acquire lawful permanent residence is important to the United States given the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which correlate highly with overall economic growth and job creation. In this rule, DHS proposes to extend employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants. DHS believes that this rule would further encourage H-1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents, to the detriment of their U.S. employer, because their H-4 nonimmigrant spouses are unable to obtain work authorization. This rule would also remove the disincentive for many H-1B families to start the immigrant process due to the lengthy waiting periods associated with acquiring status as a lawful permanent resident of the United States.

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:

In enacting the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Congress was especially concerned with avoiding the disruption to U.S. businesses caused by the required departure of H-1B nonimmigrant workers (for whom the businesses intended to file employment-based immigrant visa petitions) upon the expiration of workers' maximum 6-year period of authorized stay. See S. Rep. No. 106-260, at 15 (2000). DHS rejected this alternative as overbroad, since such an alternative would offer eligibility for employment authorization to those spouses of nonimmigrant workers who have not taken steps to demonstrate a desire to continue to remain in and contribute to the U.S. economy by seeking lawful permanent residence.

Anticipated Costs and Benefits:

The changes would impact spouses of H-1B workers who have been admitted or have extended their stay under the provisions of AC21 or who have an approved Immigrant Petition for Alien Worker, Form I-140. This population would include H-4 dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants are either the beneficiaries of an approved Immigrant Petition for Alien Worker, Form I-140, or have been granted an extension of their authorized period of admission in the United States under the AC21, amended by the 21st Century Department of Justice Appropriations Authorization Act. The costs of the rule 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 results in a negligible increase to the overall domestic labor force. The benefits of this rule would accrue to U.S. employers and the U.S. economy by increasing the likelihood of 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 amendments bring U.S. immigration laws more in line with other countries that seek to attract skilled foreign workers.

Risks: