The Department of Homeland Security (DHS) created a rule to allow H-4 visa holders—spouses of H-1B visa holders—to work in the US to alleviate hardships and support US businesses by keeping highly skilled foreign workers. Here is a summary of the current framework, eligibility, public comments and the final rule.

H-4 Visa: Supporting H-1B Families

• Eligibility: Issued to spouses and unmarried children (under 21) of H-1B visa holders.
• Duration: Same as the primary H-1B visa holder’s stay.
• Work Authorization: Previously H-4 visa holders could not work in the US, causing financial and personal hardships for many families.

H-1B Families Challenges

Long Wait Times:

• Employment based (EB) immigrant visas especially for individuals from oversubscribed countries like India and China have long backlogs—often decades.
• H-1B workers cannot file for adjustment of status unless their priority date is current.

Economic and Emotional Strain:

• Single income households struggle financially while waiting for green card approval.
• Dependents face isolation and lack of integration opportunities due to work restrictions.

Impact on US Employers

• Workforce Disruptions:
  • Skilled workers may leave the US due to green card delays and businesses have to find replacements.

Legislative Relief:

• To address this issue Congress passed provisions under AC21 to allow H-1B extensions beyond 6 years and to reduce disruption to employers.

Proposed Rule (2014)

May 12, 2014

DHS proposed to amend the regulations to allow certain H-4 dependent spouses to apply for employment authorization if the H-1B visa holder:

1. Is the principal beneficiary of an approved Form I-140 (Immigrant Petition for Alien Worker), or
2. Has extended H-1B status under AC21 due to pending or approved employment based immigration petitions.

Key Changes in the Rule

• Eligibility: Added H-4 spouses to the list of individuals who can file Form I-765 (Application for Employment Authorization).
• Documentation Requirements: Listed the supporting evidence H-4 spouses need to submit to establish eligibility.

During the 60 day comment period, DHS received almost 13,000 comments. Here are the comments:

Supportive Comments (85%)

Economic Benefits:

• Dual income households lead to more disposable income, tax revenue and community contributions.
• H-4 spouses joining the workforce will strengthen US innovation and economic growth.

Social Impact:

• Reduces isolation, financial dependence and empowers women, reduces domestic stressors and mental health challenges.
• Promotes family stability and integration into US communities.

Competitiveness:

• US immigration policies should be aligned with other countries that offer work rights to dependents.
• Helps retain highly skilled H-1B workers, reduces workforce disruption to employers.

Opposing Comments (10%)

• Labor Market Concerns:Some feared competition to US workers and potential downward pressure on wages.
• Others questioned DHS’s authority to grant employment authorization to H-4 dependents.

Mixed Comments (3.5%)

Eligibility Scope:

• Some commented that the rule was too narrow and excluded dependents of other visa categories.
• Others felt it was too broad and would invite misuse or fraud.

After comments, DHS finalized the rule with minor tweaks to clarify and address filing issues.

H-4 spouses can file for employment authorization if:

• The H-1B visa holder is the principal beneficiary of an approved Form I-140, or
• The H-1B visa holder has extended status under Section 104(c) of AC21.

Filing Process Changes

• Allowed to file Form I-765 with Form I-539 (Application to Extend/Change Nonimmigrant Status) for expedited processing.

Projected Numbers

• Year 1: 179,600 H-4 spouses eligible to apply.
• Annual growth: 55,000 new applicants per year.

For Families

• Dual income, less financial stress.
• Integration into US society, long term stability.

For Employers

• Retain H-1B workers during green card processing, reduced turnover costs.
• Helps businesses in key STEM fields.

For the Economy

• Adds skilled workers to the workforce, innovation and productivity.
• Consumer spending and homeownership, local economies.

Public Comments

• Over 200 commenters suggested to extend employment authorization to H-4 dependents of non-H-1B visa holders, including:
  • H-1B1: Specialty workers from Chile and Singapore.
  • H-2A: Temporary agricultural workers.H-2B: Temporary non-agricultural workers.
  • H-3: Trainees.
• Reason: Expanding eligibility would make US more competitive by bringing in more skilled workers and economic contributions from a larger pool of dependents.

DHS Response

• Current Limitations:
  • H-1B visa holders have “dual intent” and can pursue LPR without losing nonimmigrant status. This is not available to H-1B1, H-2 or H-3 visa holders.
  • Congress, through AC21, specifically allowed H-1B visa holders to extend their stay during green card processing, which is not applicable to other H categories.
• Future Options:
  • DHS recognized the idea has merit but wants to address these issues step by step. Expanding eligibility might be considered in future rulemaking.

Public Comments

• Over 150 commenters asked DHS to grant employment authorization to ALL H-4 dependents of H-1B visa holders, not just those whose spouses are on a green card path.
• Reason:
• The rule should be consistent with other visa categories like L-1, E-1, E-2 and E-3 where all dependent spouses are eligible for employment authorization.

DHS Response

Legal Barriers:

• Congress explicitly allowed employment authorization for dependents of L-1, E-1, E-2 and E-3 visa holders but not H-1B dependents. DHS’s regulatory authority does not permit to extend the same to all H-4 dependents.Policy Focus:
• DHS focused on dependent spouses of H-1B visa holders who are actively pursuing LPR status to address green card delays while staying aligned with AC21.

Public Comments

• Over 60 commenters asked for automatic employment authorization upon H-4 approval, eliminating the need to file Form I-765.
• Reason:
  • Streamlining would reduce administrative burden and allow dependents to start working immediately.

DHS Response

Administrative Barriers:

• Automatic employment authorization requires USCIS systems to verify eligibility independently. Current systems cannot verify spousal relationships or green card progress without manual adjudication.
• Accuracy:
  • Filing Form I-765 ensures only eligible applicants get employment authorization, minimizing errors or unauthorized work.

Public Comments

• Some commenters asked for employment authorization EARLIER in the green card process, such as:When a PERM labor certification is filed.When a Form I-140 petition is pending.

DHS Response

Approval-Based:

• Employment authorization tied to approved Form I-140 petition ensures applicants are on the LPR path, reduces frivolous filings.
• Allowing based on pending applications could result in ineligible individuals getting benefits if the applications are denied.
• Policy Balance:
  • Limiting to approved cases is consistent with DHS’s goal of promoting compliance with U.S. immigration laws and efficient resource management.

Public Comments

• Less than 40 commenters asked for employment authorization for H-4 dependent minors citing:
• Lack of work experience.
• Financial burden of post-secondary education.
• Risk of aging out of H-4 status before green card eligibility.

DHS Response

• Consistency Across Categories:
  • Employment authorization is limited to dependent spouses in other visa categories (e.g., L and E visas). Extending to minors would create inconsistencies.
• Focus on Spouses:
  • DHS focused on addressing family economic burdens through spousal work authorization which indirectly supports dependent minors.
• DACA Comparison:
  • The Deferred Action for Childhood Arrivals (DACA) program is for a different context and does not provide a basis to extend employment to H-4 minors.

Key Points

Employment authorization is for H-4 dependent spouses of H-1B visa holders who:

1. Have an approved Form I-140.
2. Have extended H-1B status under AC21.

• Not for:
  • H-4 dependents of other H visa categories.
  • H-4 minors.
  • H-4 spouses at earlier stages of the green card process.

Policy Reasoning

• Targeted Impact:
  • Focused on H-1B spouses addresses the biggest economic and personal burdens.
  • Incremental

DHS will consider further expansion but wants to take it slow and administratively feasible.

1. Employment Authorization for H-1B Nonimmigrants

• Public Comments:
  • Some commenters asked that H-1B visa holders get EADs to work for any employer, no employer specific restriction.
  • Some suggested a single EAD for households with dual H-1B spouses to avoid having one spouse to switch to H-4 status.
• DHS Response:
  • H-1B employment authorization is incompatible with the visa’s employer specific nature.
  • Allowing EADs for H-1B workers would violate the terms of the H-1B classification which ties work authorization to a specific petitioning employer.
  • Dual H-1B households can use existing options but an H-1B holder must change to H-4 status to be eligible for an EAD as a dependent.

2. H-4 Dependents not selected in the H-1B lottery

• Public Comments:
  • Less than 20 commenters asked for employment eligibility for H-4 dependents whose H-1B petitions were not selected in the lottery.
• DHS Response:
  • This rule is to retain H-1B workers already pursuing lawful permanent residency (LPR) and not to address broader issues in the H-1B program.

3. Dependents of other nonimmigrant categories

• Public Comments:
  • Some asked for dependents of O-1 (extraordinary ability) and TN (NAFTA professionals) visa holders to be eligible for employment.
• DHS Response:
  • There are significant differences between these categories and H-1B classification:
    • O-1 and TN Visa Context: These categories have fewer visa backlogs and faster LPR processing for dependents.
    • Foreign Policy Considerations: TN visas are governed by international trade agreements like NAFTA which are outside the scope of this rule.

1. Displacement of U.S. Workers

• Comments:
  • Some thought the rule would increase competition for jobs, unemployment and lower wages.
• DHS Analysis:
  • The rule is targeted, affects a small population (0.1156% of the U.S. civilian labor force).
  • High skilled immigration including H-4 dependent employment benefits the U.S. economy in the long run through innovation, consumption and job creation.
  • Existing anti-discrimination laws protect U.S. workers from being unfairly displaced by nonimmigrant labor.

2. Not Necessary

• Comments:
  • Some argued existing immigration laws already allow H-4 dependents to change to employment authorized categories so the rule is redundant.
• DHS Analysis:
  • The rule addresses gaps that prevent H-1B visa holders from remaining in the U.S. because their spouses can’t work.
  • DHS quoted many H-1B families and employers that the rule is necessary to retain workers and prevent families from leaving the U.S.

3. Impact on other immigration categories

• Comments:
  • F-1 student graduates and other nonimmigrants felt the rule was unfair as they have more stringent paths to employment than H-4 dependents.
• DHS Response:
  • The rule is targeted to address the specific challenges faced by H-4 dependents of H-1B workers including long green card backlogs.

4. Impact on Universities

• Comments:
  • Universities worried about decline in enrollment if H-4 dependents choose to work over education.
• DHS Response:
  • The rule gives more choices to H-4 dependents but does not take away their ability to pursue education.

The net effect on university enrollment is unknown, some say increased family income will lead to more educational spending.

1. Limit eligibility by skills or sectors

• Public Comments:
  • Some asked to limit eligibility to H-4 dependents with advanced degrees, STEM qualifications or specific skillsets.
• DHS Response:
  • The rule is to support U.S. businesses and retain H-1B workers regardless of the academic or professional background of their spouses.

2. Reciprocal employment policies

• Public Comments:
  • Some suggested to grant employment authorization only to dependents from countries that offer similar rights to U.S. citizens abroad.
• DHS Response:
  • The rule is to retain skilled workers for U.S. economic benefit and does not consider foreign reciprocity agreements which are foreign policy issues outside the scope of this rule.

3. Limit eligibility to AC21 extensions

• Public Comments:
  • Some suggested to limit eligibility to spouses of H-1B workers who are benefiting from AC21 extensions.
• DHS Response:
  • Including spouses of H-1B workers with approved Form I-140 petitions supports broader goals of retaining workers and minimizing disruption to U.S. employers.

• Challenges:
  • Some argued DHS doesn’t have the authority to grant employment eligibility to H-4 dependents as Congress explicitly gave similar rights to L and E visa dependents.
• DHS justification:
  • The Immigration and Nationality Act (INA) gives the Secretary of Homeland Security broad authority to determine the conditions of nonimmigrant admissions including employment authorization.
  • Precedents show the Executive Branch has the authority to grant work eligibility by regulation without congressional approval.

• Positive outcomes:
  • DHS expects minimal disruption to the labor market as the number of eligible participants is small.
• Benefits:
  • Increased household income for H-1B families.
  • More economic contributions through consumer spending, real estate investments and tax revenue.
  • Family unification and better integration into U.S. communities were mentioned by commenters.
• Displacement concerns:
  • DHS found no evidence that the rule would harm native born workers or highly skilled H-1B visa holders.

Comments on DHS’s estimates

• Opposing comments:
  • Many commenters argued that DHS underestimated the number of H-4 spouses eligible for employment authorization.
• Alternate methodology:
  • A commenter cited the Yearbook of Immigration Statistics and suggested using historical averages of spouses adjusting to Lawful Permanent Resident (LPR) status to estimate the volume of H-4 spouses.

DHS Response:

• Limitations of the suggested approach:
  • The historical average doesn’t account for current H-1B nonimmigrants waiting for visas or distinguish between H-4 and other statuses.
  • Not all H-1B spouses are in H-4 status so these calculations are less precise.
• Refined methodology:
  • DHS used current data, considering the backlog of H-1B workers with approved I-140 petitions waiting for immigrant visas and the new flow of H-4 spouses becoming eligible.
  • This approach captures the population more accurately.

Final estimate:

• Updated numbers:
  • DHS revised its estimates to up to 179,600 H-4 spouses in the first year.
  • This is a tiny fraction of the U.S. workforce (0.1156%) and doesn’t disrupt the labor market.

Comments on economic calculations:

1. Cost concerns:
   • One commenter thought DHS overestimated costs by including opportunity costs (time H-4 spouses spend applying).
2. Benefits undervalued:
   • Another commenter felt the rule didn’t account for economic and social benefits, including losses under current rule where H-4 spouses can’t work.

DHS’s position:

• Costs:
  • Opportunity costs were calculated using minimum wage as a proxy for time value, which is a reasonable assumption.
  • Even if H-4 spouses aren’t working, they face opportunity costs in deciding how to use their time.
• Benefits:
  • The rule increases household income, social integration and reduces economic burden on H-1B families.
  • It also helps U.S. employers by reducing H-1B workers abandoning the LPR process.

1. Simplified filing process

• Comments:
  • Commenters asked for streamlined or electronic filing options for Form I-765 (Employment Authorization Application).
• DHS Response:
  • USCIS ELIS System:
    • DHS is moving to an electronic system that will have real-time updates and notifications for all benefit programs including H-4 employment authorization.
    • Paper filing until May 26, 2015 to avoid H-1B cap season overlap.

Comments:

1. Match EAD to H-4 admission period:
   • 9 commenters asked to align EAD with H-4 spouse’s authorized stay (up to 3 years).
2. Shorter probationary EADs:
   • 1 commenter suggested 6 or 12 month EADs with proof of lawful work and tax payments.

• Aligned validity periods:
  • Will issue EADs matching H-4 dependent’s authorized stay to avoid gaps in authorization and reduce renewal frequency.
• Probationary EADs:
  • Denied due to:
    • No evidence of fraud or tax evasion among H-4 dependents.
    • Administrative burdens from frequent renewals and potential gaps in employment authorization.

Comments:

• 5 commenters asked to renew up to 6 months in advance to align with H-1B extension filing timeline.

DHS Response:

• Will allow concurrent filing of Form I-765 (EAD application with:
  • Form I-539 (H-4 extension/change of status).
  • Form I-129 (H-1B employer petition).
  • USCIS will process Form I-765 after related petitions are adjudicated.

Comments:

• Commenters asked for clearer guidance on acceptable evidence for Form I-765 and how to get the required documents.

DHS Updates:

1. More guidance:
   • Revised Form I-765 and instructions to make it clearer.
   • Added checkbox for H-4 dependents to simplify processing.
2. Flexibility in documentation:
   • Acceptable secondary evidence (e.g. affidavits) if primary evidence (e.g. original petitions) is not available.
   • Applicants can also request documents from USCIS through FOIA.

Integration and workforce concerns:

• DHS said the rule allows labor market entry for a small group and is in compliance with immigration laws.
• Expected outcomes:
  • Financial stability for H-1B families.
  • More income for local economies through employment.
  • Less labor disruption for U.S. businesses that rely on H-1B workers.

What was asked:

• Commenters asked DHS to allow Form I-765 (Employment Authorization Application) to be filed with:
• Form I-140 (Immigrant Petition for Alien Worker).
• Form I-539 (Application to Extend/Change Nonimmigrant Status).

DHS Response:

• Allowed: Form I-765 with Form I-539 and if applicable, Form I-129 (H-1B Petition).
• Not allowed: Form I-765 with Form I-140.

Why Form I-765 can’t be filed with Form I-140:

• Different processing centers: Form I-140 and Form I-765 are processed at different USCIS locations.
• Separate eligibility processes: Determining the spousal relationship (required for H-4 eligibility) is not required for Form I-140 adjudication and complicates joint processing.

Premium Processing

What was asked:

• Premium processing for Form I-765 applications to speed up processing.

DHS Response:

• Denied:
  • Operational challenges prevent us from meeting premium processing times for Form I-765.
  • Premium processing is typically for employment petitions like H-1B, L-1 or E categories and select immigrant visa petitions.

What was asked:

• Automatic 240-day extensions of work authorization after the current EAD expires.

DHS Response:

• Denied:
  • Automatic extensions could allow H-4 spouses to work if their underlying H-4 or H-1B status extensions are denied.
• Recommendation:
  • File all necessary forms (I-539, I-129, I-765) on time to avoid gaps in work authorization.

Key comments:

• Commenters mentioned fees:
  • Some asked for fees to be waived for H-4 dependent spouses.
  • Some said fees would generate revenue for USCIS.

DHS Response:

• No Fee Waivers:
  • H-4 dependent spouses are married to employed H-1B workers so it’s unlikely they can’t pay the application fees.
  • Fee waivers are available on a case-by-case basis as per 8 CFR 103.7(c)(3)(viii).

Proposed restrictions:

• Caps on the number of EADs issued.
• Prohibit working in the same occupation or with the same employer as the H-1B spouse.
• Restrictions on specific employers or industries.

DHS Response:

• Denied All:
  • The purpose of the rule is to retain highly skilled H-1B workers and their families by giving flexibility to H-4 spouses.
  • Quotas, limits or restrictions would defeat this purpose.

Issue:

• A commenter asked what would happen if spouses switch between H-1B and H-4 status to maintain EAD eligibility.

DHS Response:

• Not likely:
  • Switching status would not help avoid the waiting period for LPR.
  • LPR offers many advantages (e.g. unrestricted work, U.S. citizenship eligibility) over status changes.

Key issues:

1. Resume or Credential Fraud:
   • Commenters worried H-4 spouses would fake credentials.
2. Marriage Fraud:
   • Concerns about marriages to get employment benefits.
3. Criminal Records:
   • Request to exclude applicants with felony charges or convictions.

DHS Safeguards:

• Resume Fraud: Employers verify applicant credentials not DHS.
• Marriage Fraud: H-4 spouses must submit proof of marriage to the H-1B worker. Fraud detection measures include USCIS officer training and referrals for criminal investigations.
• Criminal Records: DHS will review on a case-by-case basis and deny if adverse findings.

EAD validity:

• EAD will match H-4 spouse’s authorized stay (up to 3 years) so no need for frequent renewals.

EAD renewals:

• Renewal forms (I-765, I-539, I-129) can be filed up to 6 months in advance to avoid gaps in employment.

Simplified filing process:

• I-765 instructions clarified to include acceptable evidence for spousal relationship and status.
• Secondary evidence or affidavits allowed when primary evidence is not available.

No changes to H-1B program:

• Comments to eliminate or modify H-1B cap, flexible filing dates or exempt H-4 spouses from H-1B cap were outside the scope of this rulemaking and need congressional action.

Public Comments:

• Over 30 commenters said:
  • Eliminate worldwide visa quotas to reduce backlogs.
  • Allow pre-registration of AOS applications even if visas are not available.
  • Expedite for EB-2 and EB-3 categories.
  • Issue one skilled worker visa per family unit instead of separate visas for family members.

DHS Response:

• These are outside the scope of this rulemaking as they would require changes to the immigration laws which can only be done by Congress.

Key points:

• H-1B status changes for H-4 spouse:
  • H-4 dependent spouse’s employment authorization is dependent on the H-1B worker maintaining status.
  • If the H-1B nonimmigrant loses status due to job loss or failure to extend status, the dependent spouse will also lose H-4 status and employment eligibility.

Comments:

• 9 commenters raised concerns about population growth due to increased work authorizations.

DHS Analysis:

• Most of the people affected by this rule are already in the U.S. waiting for immigrant visas. This rule just speeds up their entry into the labor market and will not have significant environmental impacts.

Public Comments:

• Some commenters asked DHS to:
  • Track EAD adjudications for H-4 spouses.
  • Publish annual reports on this rule.

DHS Response:

• DHS will keep records of all immigration benefits and will include H-4 EAD in the existing annual reporting.

Public Comments:

• Many commenters wanted the rule to be effective immediately. Some wanted a sunset provision to review after a certain period of time.

DHS Decision:

• Effective 90 days from publication (May 26, 2015).
• A sunset provision was not practical as it would create unequal employment authorization validity periods.

Key Points:

• Unfunded Mandates Reform Act of 1995:
  • This rule will not impose unfunded mandates on state, local or tribal governments or private sectors over $155 million annually (adjusted for inflation).
• Small Business Regulatory Fairness Act of 1996:
  • This rule will not cause economic disruption, increase cost or price or negatively impact competition or productivity.

Current Backlog:

DHS estimates:

• 179,600 H-4 dependent spouses will be eligible to apply for employment authorization in the first year.

New Eligibility per Year:

• 55,000 H-4 spouses.

Methodology:

• Data includes:
  • Approved I-140s (employment-based immigrant petitions).
  • H-1B extensions granted under AC21.

Key Assumptions:

• Historical H-1B data shows most applicants in these categories will adjust status in the U.S.
• Upper-bound estimate accounts for marital status and visa processing conditions.

Applicant Costs

Costs:

• Each applicant will pay:
  • $380 I-765 filing fee.
  • $56.18 for passport-style photos and time-related expenses.
  • Total cost per applicant: $436.18.

Long-term Cost Projections:

• Year 1:
  • 179,600 applicants: $78.3 million.
• Subsequent years:
  • 55,000 applicants: $24 million.
  • 10 years: $219 million – $257 million (depending on discount rate).

Broader Economic and Social Benefits

Benefits:

• Financial independence for H-4 spouses.
• H-1B family integration into U.S. communities.

Retention of high-skilled talent for economic growth, innovation and competitiveness.

1. Applicant Costs

H-4 dependent spouses applying for employment authorization will incur the following costs:

• Filing Fees:
  • The I-765 filing fee for an H-4 EAD is $410 (up from $380 as USCIS increased fees recently).
  • Two passport-style photos: $20.
• Time Costs:
  • Filing I-765 takes approximately 3 hours and 25 minutes (DHS estimate).
• Opportunity Cost of Time:
  • DHS uses the federal minimum wage of $7.25 per hour. Adjusted for benefits (paid leave, insurance, retirement) to $10.59 per hour.
  • Opportunity cost per applicant: $36.18.
• Total Costs per Application:
  • Fees + photos + opportunity cost = $466.18.

2. Total Costs

• Year 1:
  • 179,600 applicants: $83.7 million.
• Subsequent years:
  • 55,000 applicants: $25.6 million.

3. Renewals

• Renewals will cost the same: $466.18 per application. But the number of renewals will depend on the availability of employment-based green cards which varies by preference category and country of origin.

• Fee-Based Funding:
  • USCIS fees are designed to fully recover costs of adjudication, including overhead.
  • So there is no additional cost to the federal government from the H-4 EAD program.

1. U.S. Labor Market

• Labor Force Entry:
  • 179,600 in year 1. 55,000 in subsequent years.
  • That’s 0.1156% of the total U.S. civilian labor force (2013 data: 155.4 million).
• Top States:
  • States with the most H-1B visa holders (California, New York, Florida, Texas, New Jersey) will be most impacted.
• Projected first-year workforce additions:
  • California: 35,920 (0.19% of state labor force).
  • New York: 25,144.
  • Florida: 17,960.
  • Texas: 16,164.
  • New Jersey: 8,980.

2. Wider Impacts

• The program doesn’t introduce new workers into the U.S. economy but accelerates their entry into the labor market. This may help retain high-skilled workers by keeping families in the U.S. instead of leaving due to long green card waits.

1. Economic Benefits

• Financial Relief for Families:
  • Allowing spouses to work reduces financial burden on H-1B families and makes it easier to manage the cost of living in the U.S.
• Talent Retention:
  • By supporting H-1B families, H-4 EAD helps retain high-skilled professionals in the U.S., technology, research and entrepreneurship.
• Global Standards:
  • The U.S. is joining Canada and Australia which allow spousal work permits for temporary visa holders, making it more competitive in attracting global talent.

2. Social Benefits

• Integration into American Society:
  • Employment opportunities lead to socio-economic advancement which correlates with better cultural integration for immigrant families.

1. Alternatives Considered

DHS considered several options before finalizing the H-4 EAD program:

• Broad Eligibility for All H-4 Spouses:
  • Rejected because it would allow work authorization for spouses of H-1B holders not pursuing green cards, watering down the program.
• Limited Eligibility:
  • Considered restricting eligibility to only H-4 spouses of H-1B holders with extensions under AC21 (H-1B extensions beyond the 6-year limit). But that was deemed too narrow and not enough to address the green card backlog.

2. Final Eligibility Criteria

• Work authorization is available to H-4 spouses of H-1B holders who:
  • Have approved I-140 petitions, or
  • Have H-1B extensions under AC21.

3. Regulatory Changes

• Update to Form I-765:
  • The form now has a checkbox for H-4 dependent spouses, making it easier to process and reducing errors.
• Concurrent Filing:
  • Eligible applicants can file Form I-765 with Form I-539 (H-4 status changes), faster adjudication.

1. Public Comments

• Over 180 comments raised issues like:
  • Filing and renewal process.
  • Premium processing for Form I-765.
  • Fraud and documentation requirements.

2. DHS Response

• Premium processing is not available for H-4 EAD due to resource constraints.
• Applicants do not need to demonstrate financial necessity.

Projected Outcomes and Long-Term Impact

• Green Card Pursuits:
  • By relaxing work restrictions, H-4 EAD encourages families to stay in the U.S. while waiting for green cards.
• Talent Retention:
  • So workers don’t abandon the process.
  • The rule: over posting

Accordingly, DHS amends chapter I of title 8 of the Code of Federal Regulations as follows:

PART 214—NONIMMIGRANT CLASSES

1. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2.

2. Section 214.2 is amended by revising paragraph (h)(9)(iv) to read as follows:

§ 214.2

Special requirements for admission, extension, and maintenance of status.

(iv) H-4 dependents. The spouse and children of an H nonimmigrant, if they are accompanying or following to join such H nonimmigrant in the United States, may be admitted, if otherwise admissible, as H-4 nonimmigrants for the same period of admission or extension as the principal spouse or parent.

H-4 nonimmigrant status does not confer eligibility for employment authorization incident to status. An H-4 nonimmigrant spouse of an H-1B nonimmigrant may be eligible for employment authorization only if the H-1B nonimmigrant is the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or the H-1B nonimmigrant’s period of stay in H-1B status is authorized in the United States under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106-313, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273 (2002).

To request employment authorization, an eligible H-4 nonimmigrant spouse must file an Application for Employment Authorization, or a successor form, in accordance with 8 CFR 274a.13 and the form instructions. If such Application for Employment Authorization is filed concurrently with another related benefit request(s), in accordance with and as permitted by form instructions, the 90-day period described in 8 CFR 274.13(d) will commence on the latest date that a concurrently filed related benefit request is approved.

An Application for Employment Authorization must be accompanied by documentary evidence establishing eligibility, including evidence of the spousal relationship and that the principal H-1B is the beneficiary of an approved Immigrant Petition for Alien Worker or has been provided H-1B status under sections 106(a) and (b) of AC21, as amended by the 21st Century Department of Justice Appropriations Authorization Act, the H-1B beneficiary is currently in H-1B status, and the H-4 nonimmigrant spouse is currently in H-4 status.

PART 274a—CONTROL OF EMPLOYMENT OF ALIENS

3. The authority citation for part 274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Public Law 110-229; 48 U.S.C. 1806; 8 CFR part 2.

4. Section 274a.12 is amended by adding a new paragraph (c)(26), to read as follows:

§ 274a.12

Classes of aliens authorized to accept employment.

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(c) *

(26) An H-4 nonimmigrant spouse of an H-1B nonimmigrant described as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv).

*

5. Section 274a.13 is amended by revising the first sentence of paragraph (d), to read as follows:

§ 274a.13

Application for employment authorization.

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(d) Interim employment authorization. USCIS will adjudicate the application within 90 days from the date of receipt of the application, except as described in 8 CFR 214.2(h)(9)(iv), and except in the case of an initial application for employment authorization under 8 CFR 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and 8 CFR 274a.12(c)(9) in so far as it is governed by 8 CFR 245.13(j) and 245.15(n). *

*

Jeh Charles Johnson, Secretary.