On May 6, 2014 DHS announced proposals to “attract and retain highly skilled immigrants.” Along with my other business immigration colleagues, I was thrilled when the news broke. While it isn’t comprehensive information reform, it is a step in the right direction.
Let’s look at the issue of work authorization for spouses of H-1B workers, which got the most press following the announcement. I have seen quite a few articles in which immigration advocates and experts express disappointment with the proposals noting that the change is minor and not that big of a deal. But let’s look at this provision more closely. According to DHS Director Mayorkas the changes would benefit as many as 97,000 spouses in the first year and about 30,000 a year after that.
Consider that the entire annual cap subject H-1B allocation is 85,000 and according to the Department of State nonimmigrant visa data more H-1B visas are issued every year than any other work visa. This proposed rule is therefore pretty significant in the grand scheme of nonimmigrant work visas. From my corner of the world of immigration law, there is indeed cause for celebration.
But looking at the proposals, and perhaps giving some inspiration to the administration, why not provide work authorization to all H-4 spouses (or dare we wish, all spouses of nonimmigrant work visa holders)? Under 214(a), the Department of Homeland Security has the authority to make these changes broader and better. Here’s why the change, again while welcome, is so limiting –
To qualify, the principal applicant beneficiary must have been granted an H-1B extension under AC21 or an immigrant petition must have been approved for the H-1B principal applicant. In practice, this means the H-1B worker will have already been in the U.S. for six years in this status. Alternatively, the sponsoring employer would have to have completed its portion of the permanent residence process for the individual, which in my experience is not normally in the first years of the H-1B but more commonly when an H-1B is extended or nearing the six year maximum. In addition, a lengthy process must have been completed before the spouse can qualify for work authorization: a PERM Labor Department application must have been filed, which realistically takes six months to prepare; the PERM must then be certified, which will take months; the immigrant petition must be prepared and filed with USCIS, and USCIS must approve that petition—a process that currently takes four to six months, and has been known to take considerably longer. This therefore leaves thousands of H-4 spouses who won’t qualify under the new provision or who will likely need to wait years before they do.
This particular change will therefore provide a benefit to a large number of H-4 spouses, but why stop with a narrowly carved out subsection? Changes are welcome, and we can do more. Let’s do it.
Written by Anastasia Tonello, AILA Secretary