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DHS Proposed Rule for H-4 Work Authorization

February 20, 2012

At the end of the January, the Department of Homeland Security announced a number of Reforms To Attract And Retain Highly Skilled Immigrants. One of the proposals which has garnered significant enthusiasm would allow those in H-4 status (a category for dependents of H-1B visa holders) to obtain temporary work authorization. Currently, individuals in H-4 status are not allowed to work.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S.

This proposal does not apply to all H-4 visa holders, but only to spouses of workers in H-1B status who have extended that status under the provisions of the American Competitiveness in the Twenty-First Century Act (AC21).

The AC21 provision allows an individual in H-1B status, who otherwise would be limited to a maximum stay in the U.S. of six years, to extend his or her stay in one-year increments provided that a labor certification or an I-140 immigrant petition have been filed on the worker’s behalf and 365 days or more have passed. Three-year extensions are also available in certain circumstances.

Note that this proposal was the topic of a Proposed Rulemaking released in spring of last year.

In order for an administrative agency to implement a change in regulations, it must go through a rulemaking process. This process is an administrative procedure governed by the Administrative Procedure Act and requires the agency to publish the proposed regulatory change in the Federal Register and provide for a notice and comment period before enacting the new regulation.


  1. Andy permalink

    Any thoughts on how much time it will take to complete this change?

    • Unfortunately there is no way to estimate how quickly the agency will take action on this proposal. As noted in the blog post, the rule was proposed last year, but it does not appear that action was taken to publish the rule in the Federal Register and provide for a notice and comment period.

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