Shedding Light on Planned Proposal for Employment Authorization for Select H-4s

On April 7, the White House released a statement indicating that the Department of Homeland Security (DHS) is poised to publish several proposed rules, including one that, if approved, would allow a limited group of H-4 spouses to obtain employment authorization. While this news is encouraging, it is important to note that this is merely intent to issue a proposal. Unless and until there is such a proposal, and it is put into effect, H-4 spouses will remain ineligible for employment authorization.

Formal Rulemaking Process Usually Required

There are dozens of proposed DHS rule changes each year, many of which never move beyond the proposal phase to implementation. Most rule changes must go through a formal rulemaking process pursuant to federal law, and such a rule would only go into effect if it successfully progresses through the complete process.

Text of Proposed Rule Not Yet Released

As of the time of this writing, the text of the proposed rule has not yet been released. Therefore, there is no confirmed information available as to which H-4 spouses may qualify for employment authorization, if such a rule were to be implemented. The relevant portion of the White House statement merely states that the “…proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H1B visas….” The statement notes that the reason for this proposed change is to “…make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants.”

In the fall of 2013, a still-pending rule was proposed that would extend “…the availability of employment authorization to certain H-4 dependent spouses of principal H1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment.” It is not year clear whether this proposal from 2013 is related to the proposed rule referenced by the White House in this week’s statement.

H-4 Employment Proposal Only Small Portion of White House Statement

The White House statement, entitled “FACT SHEET: Strengthening Entrepreneurship at Home and Abroad,” addresses a range of topics related to entrepreneurs. Only a single paragraph focuses exclusively on foreign nationals; besides the proposal for H-4 spouses, the statement promises proposed rules aimed at “…enhancing opportunities for outstanding professors and researchers.” But, again, no specifics are provided.

Push by White House Encouraging

It definitely is encouraging that the White House is pushing for these changes to be implemented. However, stakeholders should not confuse proposed rule changes with actual changes in the law. MurthyDotCom will closely track this story and post updates when information is made available. Subscribe to the MurthyBulletin to receive a weekly digest of this and other immigration law matters.

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