Proposed USCIS Rules: Work for Dependent Spouses, Expanded Opportunities

01:43 06 August in News Updates

The United States Citizenship and Immigration Services (USCIS) published new notices of proposed rulemaking in the Federal Register.  The proposed rules address the ability of H-4 dependent spouses to work in the U.S., as well as formally recognize the E-3 and H-1B1 visa classifications, especially with respect to the ability to continue to work while an extension of status is pending with USCIS.  Comments to the proposed rules are due by July 11th.  The publication of a final rule could take some time depending on the time that USCIS will take to review the comments and issue a final rule.

Work Authorization for H-4 Dependent Spouses

Obtaining permanent residence can be an extremely long process for many foreign nationals sponsored by employers.  As a result, some highly skilled workers are deterred from remaining in the U.S. because their spouses are not able to obtain work authorization while waiting for permanent resident status.  The proposed rule would provide an opportunity for certain H-4 dependent spouses to apply for work authorization via an Employment Authorization Document.

The H-4 dependent spouse would be eligible for work authorization provided the H-1B worker is the beneficiary of an approved I-140 Immigrant Worker Petition or has been sponsored for an H-1B extension beyond the maximum period of six years pursuant to section 106(a) and/or (b) of the American Competitiveness in the 21st Century Act (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act.

Expanded Opportunities for E-3 and H-1B1 Nonimmigrant Workers

Another proposed rule would update the regulations to include the nonimmigrant specialty occupation professionals from Australia (E-3) and Singapore and Chile (H-1B1) in the list of classes of those workers authorized for employment incident to status with a specific employer, meaning that such workers may work in the U.S. without having to apply for a separate employment authorization document.  Please note that it has been the practice to permit E-3 and H-1B1 workers to work upon to proper admission into the U.S. or change of status to E-3 or H-1B1 without having to obtain any separate employment authorization document; this regulation would just specifically provide for such process.

The rule also would provide authorization for E-3 and H-1B1 nonimmigrant workers to continue to work for the same employer while an extension of status is pending with USCIS provided such extension has been timely filed with the USCIS.  At this time, many other nonimmigrant workers, such as H-1B, may continue to work for up to 240 days beyond the expiration date of the current work authorization provided that the sponsoring employer timely files an extension of status petition on behalf of the worker before his/her current status expires.  This “240 day” rule would be extended to E-3 and H-1B1 workers so that they will no longer be placed at a disadvantage compared to other similarly situated nonimmigrant workers.

LAC will continue to monitor these proposed rules and will provide updates after the comment period has ended in July 2014.

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