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Homeland Security Announces Plan to Terminate Work Authorization for Certain H-4 Visa Holders

The Department of Homeland Security (DHS) recently published a notice of proposed rule-making that would rescind employment authorization for certain H-4 visa dependent spouses of H1-B immigrant workers.

Provided under the Immigration and Nationality Act (INA), the H-1B visa allows employers in the United States to hire foreign nationals to occupy highly specialized positions in fields such as medicine, engineering, and other sciences. Dependents of H-1B holders, including spouses and children, may also come to the U.S. and acquire work authorization through the H-4 visa.

The DHS, however has proposed revoking employment authorization for certain H-4 visa holders under Proposed Rule (RIN 1514-AC15). This rule change, according to US Citizenship and Immigration Services (USCIS) Director Lee Francis Cissna, was supposed to take effect as soon as February 2018 but was held off as other regulatory agenda items were up for review.

One of the expected outcomes of the proposed policy change is the reduction of costs of producing employment authorization cards for working H-4 nonimmigrants. The DHS, however, also acknowledged that employers may end up incurring higher labor turnover costs as a result of the proposed rule.

This is a sharp turnaround from the policy set in 2015, when the DHS, for the first time, made the dependent spouses of H-1B nonimmigrant workers eligible for work authorization through the H-4 visa. An H-4 holder looking to be lawfully employed would have to be in the middle of the permanent residence sponsorship process, which also mean being failing in the growing backlog of green card applications.

In addition, the DHS extended work authorization to H-4 spouses of H-1B holders whose I-140 immigrant visa petitions have already been approved by USCIS but are still waiting for the release of their green cards due to the tremendous back. Those who were eligible for H-1B extensions and initiated their permanent residence sponsorship 12 months before the end of their sixth year as lawful H-1B holders were also permitted to work legally.

The move to retract these policies is largely in accordance with President Trump’s “Buy American, Hire American” executive order. The DHS’ latest announcement is only a proposed rule and cannot work retroactively. This means that currently valid employment authorization documents for H-4 spouses will continue to be valid until they are up for renewal, which new regulations will not allow.

Another possibility for the fate of H-4 work authorization is an announcement from the DHS of the effective date for cessation of validity. Nonetheless, H-4 employment authorization cards will remain valid until the DHS states otherwise.

If you wish to learn more about the H-4 visa program, or need help applying for a visa with your employer under the H-1B program, the Lyttle Law Firm is ready to help. Schedule a consultation with immigration attorney Daniella Lyttle for a full review of your credentials.

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