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DHS Extends Eligibility for Employment Authorization to Certain Spouses of H-1B Workers
Feb. 26 2015

DHS Extends Eligibility for Employment Authorization to Certain Spouses of H-1B Workers

Topics: Immigration

On Tuesday, the US Citizenship and Immigration Services issued a final rule extending employment eligibility to the H-4 nonimmigrant spouses of H-1B workers who are not subject to the six year limitation on stay in H status.  Normally, H-1 workers are permitted to remain in the United States for six years and work for their petitioning employer.  In the interests of family unity, the spouse and minor children of H-1 workers are admitted as H-4 nonimmigrants.  They are not permitted to work.

H-1B workers who are the beneficiaries of an approved immigrant petition (usually filed by their employer) are no longer subject to the six year limit on stay in H-1 status.  H-1 workers and H-4 family members may remain in the United States as nonimmigrants until such time as their applications for permanent residence are adjudicated.

Under present law, 140,000 employment based immigrants are admitted to the United States every year.  Because the number of potential employment based immigrants (both workers and family members) far exceeds the supply of visas, individuals seeking to immigrate as employment based immigrants wait from months to decades before they receive their green card.

This new rule acknowledges the H-4 spouse’s status as a potential immigrant and permits the spouse to receive open market employment authorization while they wait in the line to obtain lawful permanent residence.  This rule goes into effect and USCIS will accept applications for H-4 employment authorization cards on May 26, 2015.

Read the USCIS news release and federal register notice of this rule change here and here.

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Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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