Work Permits! Spouses?

Work permits for H-4 spouses could soon become a reality in certain cases, but this is not a new proposal, and it does not affect that many people.  It will also take a while for this to go into effect.  On May 6, USCIS announced that it was intending to propose a rule which would allow dependent spouses of H-1B workers (H-4 category) to work, but only if their H-1B spouse is the beneficiary of an approved immigrant visa petition (the I-140 petition) or has obtained an extension of H-1B status beyond the six years as allowed under the American Competitiveness in the Twenty First Century Act (2000) (AC21) legislation.  This is an fairly limited group of people, because in order to obtain an I-140 approval, most employees must first proceed through the Department of Labor process called PERM and obtain a labor certification before even starting the I-140 petition.  This is a lengthy process.  Another option is the AC21 extension, but that only applies in two situations 1) where an I-140 is approved and priority dates are backlogged (enabling a 3 year extension of H-1B status beyond the sixth year); or 2) where the PERM labor certification was filed at least one year prior to the extension request.  So, in both these situations, there has been a lengthy process toward permanent resident status.  It does not impact very many people who are in visa categories that are generally current, since if an employee has an approved I-140 petition and current priority date, an adjustment of status application can often be filed, and as part of that process a spouse can obtain work authorization based on the pending application.  

This proposal is not new.  It was proposed back in January 2012 by this administration, including a notice of proposed rulemaking, but no action was taken on it at that time.  With this renewed proposal, there will also be some time before it goes into effect.  First, the announcement states that the proposal will be published with a public comment period.  Most of the time, this is a 30 to 60 day comment process, and then followed by a collection of all the comments by the government and an analysis of the responses.  This can take months or even years.  Assuming that this is a priority for the administration, it will still take a few months to put into a final regulation.  Once final regulations are issued, it will still take 60-90 days for most H-4 spouses who file for work authorization under this provision to actually receive work authorization in the form of an Employment Authorization Document (EAD card).  While it is difficult to say, it is a good guess that most H-4 spouses might see a work permit (after applying for it of course) by the end of the year if all goes well.  Be advised that there is no rule yet, and no application procedure established, so that cases filed now would likely be rejected.  

Despite the fact that this may take a while to implement, and may affect relatively few people, it is still a positive measure undertaken by the Obama administration, and will help a number of families.  While the administration could have gone much farther and proposed work authorization for all dependent spouses, this is a fairly good first step.