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On May 12, 2014, US Citizenship and Immigration Services (USCIS) published two notices of proposed rulemaking in the Federal Register. The public is able to comment on the proposed rules during the 60-day comment period. The proposed changes include a provision to allow spouses of certain H-1B employees to work.

The Department of Homeland Security proposes to extend the availability of employment authorization to certain H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited to H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment. This population will include those H-4 dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty- first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act. This regulatory change would lessen any potential economic burden to the H-1B principal and H-4 dependent spouse during the transition from nonimmigrant to lawful permanent resident status, furthering the goals of attracting and retaining high-skilled foreign workers.

Officials estimated that this change would allow 100,000 non-citizens to seek work in the U.S. immediately, and would let roughly 30,000 spouses seek work authorization annually.

But in the rule published Monday, DHS said the annual number of people seeking work authorization will be closer to 36,000.

“DHS estimates the flow of new H-4 spouses that would be eligible to apply for initial employment authorization in subsequent years to be 35,900 annually,” the rule stated.

“The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardship for the families of H-1B nonimmigrants the longer they remain in the United States,” the rule stated.

“DHS believes that this proposal would further encourage H-1B skilled workers to remain in the United States, continue contributing to the U.S. economy, and not abandon their efforts to become lawful permanent residents, to the detriment of their U.S. employer, because their H-4 nonimmigrant spouses are unable to obtain work authorization.”

DHS is accepting comments on the new rule through July 11.

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