May 2616121257_LargeAs our readers are no doubt familiar, there has been much wrangling over the ruling of a federal judge in Texas who imposed an injunction on President Obama’s plan to expand employment authorization to an additional 300,000 people who entered the United States as minor children, the so-called DREAMers.   HRLegalist previously reported that the U.S. Citizenship and Immigration Service would begin accepting applications for the expanded version of the Deferred Action for Childhood Arrivals (DACA) initiative as of February 18, 2015.  After the injunction was imposed on February 16, 2015, the administration declared the program suspended in order to comply with the injunction.  However, in recent days there have been reports that the administration violated the injunction and issued employment authorization documents to 100,000 new DACA applicants. 

Amid this controversy is a lesser reported, yet major development in the administration’s plan to reform the nation’s immigration system in the absence of Congressional action.  Effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.   Under current law, the spouse and children of an H-1B specialty worker are granted H-4 status and are not permitted to work.  The new regulation amends this prohibition and extends employment authorization to H-4 dependent spouses (not children) of H-1B nonimmigrants who:

  1. Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  2. Have been granted H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000, a law which permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

According to U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez  “Allowing the spouses of these visa holders to legally work in the United States … helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

On May 26, 2015 USCIS will begin accepting applications for employment authorization for eligible candidates.   Employers need to be prepared for these applications and therefore need to know that certain H-4 dependent spouses now are eligible to work lawfully in this country.  HR staff should be on the alert for requests by these spouses and need to understand who is covered and who is not.

This measure is not likely to open any floodgates of persons applying for employment authorization, as the pool of eligible candidates is relatively small.  This is, nonetheless, a significant development and it is important to be prepared.  Contact employment and immigration counsel for additional information.