DHS Regulatory Suggestions for H-4s to Work

Many MurthyDotCom and MurthyBulletin readers have inquired as to whether the laws have changed to allow individuals in H-4 dependent status to obtain work authorization. At the time of this writing, there has been no favorable change to allow H-4 dependents to work. The renewed interest in this long-debated topic, however, is the result of recent suggested regulatory changes put forth by the U.S. Department of Homeland Security (DHS), summarized here for our readers.

Source of Suggested Changes

On January 31, 2012, the DHS issued a factsheet, which outlined proposed regulatory changes to attract and retain highly-skilled immigrants. These proposed changes are consistent with the Obama Administration’s commitment to “fix our broken immigration system.” They present options to address discrete problems in the system, in the absence of the much-needed overall immigration reform.

Included in the list of proposed changes are more flexible eligibility criteria for employment authorization for students in F-1 status, as well as for certain H-4 spouses of H1B workers, and other specified workers. The proposed changes also would broaden rules governing outstanding professors and researches, and entrepreneurs. A short overview of the plans identified in the DHS factsheet follow.

DHS Interpretation of Regulations, no Legislative Change

At issue is a change in the interpretation of DHS regulations, rather than creation of new legislation or laws. The important difference is that laws must be passed by the U.S. Congress and signed by the President. This is a complex process, which is highly politically charged. Regulations can also be difficult to modify, but the process primarily is contained within the agency involved in implementing the laws, in this case the Department of Homeland Security (DHS). Regulations interpret and implement existing laws and involve many specific details not set forth in the law. The decisions as to the regulatory changes are within the control of the DHS, as long as they are acting within the boundaries of existing laws.

Eligibility for H-4 Spouses of Certain H1Bs to Work: Gray Areas

Among the proposed regulatory changes is one that could provide a significant benefit for some H-4 nonimmigrants. The H-4 category is for spouses and children of H1B workers. At this time, individuals in H-4 status are not work authorized, meaning that they are not allowed to engage in employment. This rule has been the center of much heated debate and discussion for many years. The spouses of H1B skilled workers are often well educated and possess high levels of professional skills and experience, as well. These individuals have been struggling with their inability to work while living with the principal H1B spouse in the United States. Recognizing the benefit to the U.S. economy that will result from a relaxation of these rigid restrictions, DHS proposes to amend the current regulation governing this matter.

The DHS summary of the proposed regulation indicates that it will make it possible for H-4 dependent spouses to seek employment authorization “while their visa holder spouse waits for his or her adjustment-of-status application to be adjudicated.” It states that employment authorization will be conditioned on the H1B spouse having started the employment-based, permanent resident (“green card”) process and having been in the United States for a “minimum period of H1B status.”

Thus, it is not entirely clear at what point the “minimum period” will be reached to allow H-4 nonimmigrants to apply for employment authorization. There also seems to be some internal contradiction in the summary as to whether it is enough to have begun the green card process, or whether it is necessary to have filed the application for adjustment of status (I-485). These details will have to be examined closely in any further DHS announcements or the final proposed regulation.

Expansion of STEM OPT Eligibility

Currently, qualified F-1 students can obtain permission to work for 12-months in Optional Practical Training (OPT) following completion of their studies. Additionally, some F-1 students meet the eligibility criteria for a 17-month extension of OPT. This extension is limited to students in F-1 status whose most-recently completed degree was in one of the fields designated as science, technology, engineering, or mathematics (STEM).

The proposed change to the current regulation allows each student with a prior STEM degree to apply for the 17-month OPT extension, even if the STEM degree is not her/his most recent degree. A typical example of this might be a person with a STEM bachelor’s degree followed by an MBA. The DHS states that it will continue to review and update the list of acceptable STEM degrees.

Academic Study for F-2 Dependents

The proposed legislation will allow spouses of F-1 students to enroll in part-time academic classes in contrast to the current regulation that only allows such spouses to enroll in part-time vocational or recreational classes. Other spouses and children in dependent nonimmigrant statuses are able to enroll in school without such restrictions.

Flexibility for Outstanding Professors / Researchers

The DHS also proposes a regulatory change affecting the EB1B preference category for outstanding professors and researchers (OPR). The proposed change would expand the types of evidence that can be submitted in support of the OPR immigrant petition and the allowable evidence list to include a catch-all category permitting consideration of any type of “‘comparable evidence’ to that contained in the specifically articulated regulatory list.” This makes the potentially acceptable evidence of accomplishments and recognition less restrictive than under current requirements.

DHS Entrepreneurs-in-Residence Initiative

The DHS has announced the launch of an entrepreneurs-in-residence initiative on February 22, 2012 in Silicon Valley, CA. This is to solicit expert advice on the DHS’s earlier initiative designed to promote job creation by start-up companies founded by foreign entrepreneurs. This was shared with MurthyDotCom and MurthyBulletin readers in, USCIS Announcement to Encourage Entrepreneurs to the U.S. (04.Aug.2011).

Conclusion

We applaud these efforts toward flexibility and real-world considerations in the proposed changes to the existing regulations outlined by the DHS. If implemented, the improvements will provide greater benefits to many skilled workers and their families, while also benefiting the U.S. economy. Since the DHS indicated no timeline, interested individuals are cautioned not to rely on proposed changes by taking any specific action at this time.

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