The Future of Employment Authorization for Spouses of H-1B Workers

Major news outlets have recently reported that the Trump Administration plans to rescind regulations introduced by the Obama Administration that allow certain spouses of H-1B workers (referred to as “H-4” dependents) to apply for employment authorization. These regulations have also been challenged – so far unsuccessfully – in federal court litigation by anti-immigration groups. At this time, there is no regulation or bill that has been introduced to repeal the H-4 employment authorization program. However, given the Trump Administration’s stance on immigration, especially as set forth in the “Buy American, Hire American” Executive Order, it is possible that the Administration will introduce regulation that will affect the H-4 work authorization program in the coming year. Should the Administration rescind this program, the impact will not likely be immediate – any regulatory attempt by the Trump Administration would need to undergo the notice and comment procedures under the Administrative Procedures Act (“APA”), which would take at minimum several months. It is also unlikely that the regulations would nullify periods of H-4 work authorization that have already been approved. What This Means for You We encourage employers who have employees working in H-4 status to contact our office so that we may explore possible alternatives to H-4 work authorization. In some cases, it may be advisable to file an H-1B in next year’s H-1B “cap lottery” and/or start the green card process as soon as possible.

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