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USCIS to Accept Requests for H-4 Spouse Work Authorization Starting May 26, 2015

Today, USCIS announced that starting May 26, 2015, it will allow certain spouses of individuals in H-1B status to apply for work authorization. This is welcome news for the tens of thousands of H-4 spouses in the U.S., who currently are not permitted the ability to contribute to the workforce. USCIS hopes that this work authorization announcement will entice qualified individuals in H-1B status to further invest their skills and the future of their families in the U.S.

Individuals eligible for the H-4 Status will not include H-4 children as the amended regulation only contemplates H-4 Spouses. Furthermore, in order for the spouse to qualify, the principal H-1B status holder must have had a Form I-140 Work Petition filed and approved on their behalf. If no Form I-140 has been filed and approved, the H-1B principal must be beyond the six-year limit in their H-1B status in order to qualify for the new regulation. Some have criticized the H-4 announcement as too narrow in scope, as it will not cover H-4s whose H-1B spouse has not reached their 6-year limit and who have not benefitted from an approved I-140. In defining the scope of covered parties as it has, USCIS has shown a focused commitment to the H-1B holders and their families who are substantially ‘on the road’ to becoming U.S. Permanent Residents.

USCIS hopes that the policy change reduces certain disincentives that currently lead H-1B status holders to depart the U.S. while waiting in line for their Green Card—sometimes for up to ten years—which will also minimize disruptions to U.S. businesses employing them. USCIS also believes that new policy will support the U.S. economy because the contributions highly skilled workers make to business, science and entrepreneurship stimulate economic growth and job creation. The rule also will bring U.S. immigration policies closer to those offered by other countries that compete to attract a finite number of highly skilled workers. On a related note, it is almost certain that this new incentive for H-4 spouses will sprout an increased demand in this year’s highly anticipated H-1B lottery.

As a reminder, the eligibility period will commence on May 26, 2015, and any applications submitted before this date will be rejected by USCIS. The application fee is $410, and it is estimated by USCIS that up to 180,000 may benefit from the special H-4 spousal work authorization in its first year and up to 55,000 in subsequent years. Applicants are reminded that work cannot commence until their Employment Authorization Document (EAD) is actually received.

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