Tag Archives: department of homeland security

Spousal H-4 Visa Holders: Important Changes on the Horizon Regarding Employment Authorization for Certain H-4 Dependent Spouses

Contributed by Jacqueline Lentini

In May 2014, the Department of Homeland Security announced a proposed rule to allow for work authorization for certain spouses of H-1B visa holders. The work permit is called an Employment Authorization Document or EAD. No time frame has yet been finalized for this benefit.

Employment authorization could be extended to H-4 nonimmigrant spouses in the following situations:

(1) The principal H-1B spouse is the beneficiary of an approved 1-140 Immigrant Petition; or

(2) the H-1B nonimmigrant’s period of stay is authorized under sections 106(a) and/or (b) of the American Competitiveness in the Twenty- First Century Act of 2000 (AC21). AC21 provides for a one-year extension of H-1B status beyond the six-year limitation if the H-1B visa holder is the beneficiary of a labor certification application or an I-140 petition that has been pending for at least 365 days prior to reaching the end of the sixth year of H-1B status. H-4 spouses of H-1B visa holders who meet these eligibility requirements would still need to apply for an EAD and pay the appropriate fee.

Further implementations to be considered include the following:

1) Expand Eligibility to All H-4 Spouses.  This would make the U.S. a more attractive place to work and set up home, for all H-4 spouses. In turn, it would make highly skilled foreign workers (H-1B’s) much happier in their work and private lives, if spouses are able- or at least have the option- to have a career and generate income for the family unit.

2) Expand EAD Eligibility to H-4 Spouses Where the H-1B Nonimmigrant is the Beneficiary of a Pending Labor Certification Application or I-140 Petition.  This approach towards H-4’s would remain true to the spirit and goal of enhancing the ability of the U.S to attract and more permanently retain highly-skilled foreign workers.

Department Of Homeland Security Decides to Cease Deportation of Some Individuals Through Prosecutorial Discretion

Contributed by Sara Zorich

On June 15, 2012, the Department of Homeland Security (DHS) announced that it will exercise prosecutorial discretion on a case-by-case basis regarding whether to cease deportation proceedings of certain undocumented aliens under the age of thirty. The DHS announced that an individual who can demonstrate the following will be eligible for an exercise of discretion deferral of deportation for a two-year period:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding June 15, 2012 and are present in the United States as of that date;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Not over age 30 as of June 15, 2012.

DHS has indicated that deferred action is not amnesty, is not immunity, is not permanent, is not legal status and is not a pathway to a green card or citizenship. The directive is a stop-gap to attempt to allow Congress time to pass alternate forms of immigration reform.

If the individual meets the above criteria and is granted the deferred action, they will be eligible to apply for an employment authorization document enabling them to work in the United States if they can prove “an economic necessity for employment.”  The employment eligibility will be granted for a two-year period subject to extension if their deferred action is extended.

At this time DHS and U.S. Citizenship and Immigration Services (USCIS) have not issued any procedural guidelines for those eligible for deferred action as the agencies have 60 days in which to create a process for the requests.  Thus, employers should be aware that no one has been grated deferred action at this time nor have any employment authorization documents based on deferred action been issued.  We will keep you updated as to further developments.