Employment Authorization for H-4 Dependent Spouses of Certain H-1B Nonimmigrants Under the New DHS Rule - April 2015
2015年2月25日，国土安全部(以下简称“DHS”)发布了一份 final rule amending DHS regulations to extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based lawful permanent resident status. 最后一条规则, 5月26日生效, 2015, supports DHS goals of attracting and retaining highly skilled foreign workers by helping to alleviate some of the hardship caused by historically long delays for immigrant visas in the 第二个(EB-2) and third (EB-3) 以就业为基础的永久居民调整的优先类别. 为了使H-4受抚养配偶符合新的最终规定, the H-1B principal nonimmigrant must be on track to secure employment-based lawful permanent resident status and must either be the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140) or have been granted H-1B status pursuant to sections 106(a) and 106(b) of the 2000年《澳门十大正规网赌网址》. AC21 106(a) and (b) permits H-1B extentions beyond the six-year maximum duration of authorized stay if 365 days or more have elapsed since the filing of the labor certification application or the filing of an immigrant visa petition.
5月26日之前, 2015年的现行规定, 所有H-4家属都没有资格获得工作许可. 8 CFR 214.2(h)(9)(iv). The spouse’s inability to work can lead to personal and financial hardships for the families of H-1B nonimmigrants and this lack of employment authorization, 再加上历史上等待就业移民签证的时间过长, has been a deterrent to some highly-skilled H-1B nonimmigrants seeking lawful permanent resident status in the United States which, in turn, 这使得美国政府在这方面更加困难.S. 雇主希望留住他们高价值的非移民雇员. 在制定新的最终规则时，国土安全部的重点是美国的利益.S. employer as the basis for extending work authorization to eligible H-4 dependent spouses.
5月26日开始, 2015, eligible H-4 dependent spouses may file Form I-765 Application for Employment Authorization with USCIS. This application may be concurrently filed with an Application to Extend/Change Nonimmigrant Status (Form I-539) and, 前提是H-4配偶符合要求, USCIS will grant work authorization for the same period as the H-4 extension of stay. I-140移民申请的受益人, 美国移民局将以三年为单位批准H-1B和H-4延期. Extensions pursuant to AC21 106(a) and (b) are granted in one-year increments until a decision is made on the pending labor certification and/or I-140. 连同申请费一起, the applicant will also need to submit evidence that he or she is in valid H-4 status and that the H-1B principal nonimmigrant is also currently in valid H-1B status. The qualified H-4 dependent spouse would be authorized to accept employment upon approval of the I-765 and receipt of the Employment Authorization Document (“EAD”).
这个新规定没有给H-4配偶提供任何新的好处, but rather shortens the delay before he or she obtains work authorization in conjunction with filing an Application for Permanent Residence (Form I-485) when an immigrant visa finally becomes available. 将就业资格限制在这一狭窄类别的H-1B受抚养配偶, DHS focuses on the INA’s explicit authorization of “dual intent” for H-1B nonimmigrants (INA 214(h)) and Congress’s recognition in passing AC21 of the need to address long delays workers face in the process of obtaining lawful permanent resident status.DHS requires an approved I-140 to reduce the risk of frivolous labor certifications and filing of immigrant visa petitions for the primary purpose of making an H-4 dependent spouse eligible for employment authorization. The I-140 approval proves in most cases that the H-1B nonimmigrant is eligible for the underlying immigrant classification and adjustment to lawful permanent resident status once an immigrant visa becomes available. In permitting work authorization for dependent spouses of H-1B nonimmigrants granted a 7th 根据AC21延长一年H-1B签证, DHS recognizes that such cases demonstrate a significant track record of compliance with DHS regulations by the foreign worker and employer through successfully applying for and receiving at least one H-1B extension.
在5月12日宣布拟议规则后, 2014, 国土安全部收到近13份,在60天的评论期内，我们收到了5000条评论. Approximately 85 percent of the commenters supported extending work authorization to this class of H-4 dependents. Some commenters requested that DHS expand the rule to grant H-4 dependent spouses of H nonimmigrants in classifications other than H-1B. DHS declines to expand the new rule further at this time but may considering expansion of H-4 employment eligibility in the future as part of an incremental approach. The success (or failure) in the implementation of DHS’s new rule will undoubtedly influence the likelihood of future expansions of work authorization to dependents so it is vital that we remain vigilant in our efforts to avoid fraud and misrepresentation in our practice.