USCIS to Rescind Work Authorization Rule for H-4 Spouses

On December 14, 2017, the Department of Homeland Security announced that it is preparing proposed regulations eliminating United States work authorization for certain holders of H-4 visas, a derivative visa classification that permits a member of an H-1B visa holder’s family to accompany him or her to the United States.

The authorization in question was created by executive action of the previous administration in 2015. It grants work permission to those H-4 visa holders whose spouses are the beneficiaries of approved petitions for employment-based permanent residence, but who cannot immediately claim their permanent resident visas (“green cards”) because of backlogs in the permanent resident process.  In general, H-4 spouses are not permitted to work in the United States, and before promulgation of the 2015 rule that the DHS now proposes to rescind, the same applied to H-4 visa holders in these particular circumstances.  Because couples in these circumstances often face multi-year waits for green cards – in some cases waits of a decade or more – the effect of the unavailability of work permission had been to require them to live as single-income households for protracted periods.

The announcement was published as part of the biannual Uniform Agenda of Federal Regulatory and Deregulatory Actions, a volume previewing federal rules under development. It lists a target date of February, 2018 for publication of the related notice of proposed rulemaking, but is not specific about when the H-4 work authorization itself would sunset, and does not give any further details about the change, such as whether existing work authorizations would remain valid to their previous expiration dates and/or be grandfathered for renewal.

In the meantime, employers of H-4 spouses who would be affected by the rule change may wish to begin planning for other visa options in 2018, possibly including submitting H-1B visa petitions for the H-4 spouses themselves.

Additional details should become available when the notice of proposed rulemaking is published, and we will provide updates on this issue as it develops.

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