Department of Homeland Security Plans to End Employment Eligibility of Spouses of Highly Skilled Foreign Workers

January 5, 2018

For years, the spouses of highly skilled foreign workers holding visas under the H-1B program weren’t authorized to work in the United States, absent separate approval through a separate program. However, in 2015, the Department of Homeland Security (DHS) published a final rule extending eligibility for employment authorization to certain spouses of H-1B visa holders seeking employment-based lawful permanent resident (LPR) status (commonly referred to as green card holders).  Under the Obama-era rule, intended to encourage H-1B workers to remain in the US during the lengthy green card approval process, these spouses (also known as H-4 dependent spouses) could legally work in the US.  Now, the Trump Administration is considering ending that rule.

On December 14, 2017, the Department of Homeland Security published a notice of proposed rulemaking, proposing an amendment to DHS’s 2015 rule to remove H-4 dependent spouses from employment authorizations.  The proposed rule also cited to the Trump Administration’s Buy American and Hire American Executive Order, which suggested reforms to the H-1B process.  If this new rule is finalized, it would have a huge impact on H-1B workers and their spouses – particularly Indian nationals, who claim the majority of H-1B visas each year and often depend on H-4 eligibility to maintain two-income households.  According to U.S. Citizenship and Immigration Services approval statistics, over 100,000 spouses of H-1B visa holders were granted work permits via the H-4 designation since 2015.

The new rule could be finalized in the first half of 2018, after a 30-day public comment period.  Once finalized, H-4 spouses (many of whom are highly skilled in their own right) could attempt to get their own H-1B visas, but would need to obtain sponsorship from a US employer and successfully navigate the restrictive H-1B lottery system in order to do so.

Companies who are currently employing H-4 visa holders may want to consider exploring other work visa options for them. Employers with questions regarding how this potential changes could impact their foreign employees should consult counsel with expertise in this area. Meanwhile, HR Legalist will continue to track changes at the Department of Homeland Security and how they will impact employers.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

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