Published:  May 13, 2014

In the past week, the Obama Administration announced its plan to implement a program allowing qualified spouses of H-1B visa holders to obtain an Employment Authorization Document.  The plan has yet to be put into action, and it’s expected that Department of Homeland Security will start accepting and processing applications from eligible applicants a short time after the “comment period” expires in the coming 60 days.

For now the provision is a “proposed rule,” where anyone in the public is free to chime in and comment on the proposal.  Once the comment period expires, the comments will be reviewed and perhaps even taken into account, when the final provisions to govern the implementation of the program are arrived at and published.

Firstly, what is an Employment Authorization Document?

It’s a general work permit issued by the U.S. Department of Homeland Security/Citizenship and Immigration Services, usually in 1 or 2 year term increments, allowing the holder to work in virtually any job they would like in the U.S.

What is an H-1B visa?

It’s a visa the U.S. government makes available to a foreign worker who is petitioned by a specific U.S. employer and who will work for that employer in a highly skilled, or professional position – where typically the attainment of a U.S. university degree, or equivalent, is a requirement.  Qualifying positions include:  Accountant, IT Manager, Systems Analyst/Software Engineer/Programmer, Engineer – various subspecialties, Physician, Teacher, Scientific Researcher, Physical Therapist, Medical Technologist, Occupational Therapist, , Rehabilitation Coordinator, Director of Nursing, Quality Assurance Manager, Operations Manager, Financial Analyst, Marketing Manager, Forensic Consultant, Lawyer, Media Manager, Marketing Manager, Graphic Designer, Architect  – among others.

 Who will qualify for an Employment Authorization Document under the new rule?

In sum, in its current form, the new rule will benefit a relatively narrow group of H-4 visa holders.  This group will include:

1)      Spouses of H-1B visa holders, who are themselves: 1) in H-4 status, and 2) whose H-1B spouse is the beneficiary of an approved I-140 immigrant worker petition, but where the priority date is not yet current (i.e. still waiting for visa availability given their place in the visa line at play in the various Employment Based Preference Categories:  EB-1, EB-2. EB-3, other workers, etc.)

2)      Spouses of H-1B visa holders, who are themselves:  1) in H-4 status and 2) whose H-1B spouse is the beneficiary of a PERM, Alien Labor Certification Filing (the first stage of the Employment Based Green Card process, for most Employment Based applicants) or I-140 petition that has been pending for more than a year, and 3) the petitioning employer has filed for and obtained approval for an extension of the principal H-1B visa holder’s nonimmigrant status for a period beyond the usual 6 year limit.

Children in H-4 status are not eligible for an Employment Authorization Document under this proposed program.

Any and developments on this issue, including when DHS/CIS will begin accepting applications, will continue to be reported on in this column.

PUBLISHED May 13, 2014 “IMMIGRATION LAW FORUM” Copyright © 2014, By Law Offices of Richard Hanus, Chicago, Illinois