[Federal Register Volume 80, Number 37 (Wednesday, February 25, 2015)]
[Rules and Regulations]
[Pages 10284-10312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-04042]



[[Page 10283]]

Vol. 80

Wednesday,

No. 37

February 25, 2015

Part IV





Department of Homeland Security





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8 CFR Parts 214 and 274a





 Employment Authorization for Certain H-4 Dependent Spouses; Final Rule

Federal Register / Vol. 80 , No. 37 / Wednesday, February 25, 2015 / 
Rules and Regulations

[[Page 10284]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2501-10; DHS Docket No. USCIS-2010-0017]
RIN 1615-AB92


Employment Authorization for Certain H-4 Dependent Spouses

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Final rule.

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SUMMARY: This final rule amends Department of Homeland Security 
(``DHS'' or ``Department'') regulations by extending eligibility for 
employment authorization to certain H-4 dependent spouses of H-1B 
nonimmigrants who are seeking employment-based lawful permanent 
resident (``LPR'') status. Such H-1B nonimmigrants must be the 
principal beneficiaries of an approved Immigrant Petition for Alien 
Worker (Form I-140), or have been granted H-1B status in the United 
States under the American Competitiveness in the Twenty-first Century 
Act of 2000, as amended by the 21st Century Department of Justice 
Appropriations Authorization Act. DHS anticipates that this regulatory 
change will reduce personal and economic burdens faced by H-1B 
nonimmigrants and eligible H-4 dependent spouses during the transition 
from nonimmigrant to LPR status. The final rule will also support the 
goals of attracting and retaining highly skilled foreign workers and 
minimizing the disruption to U.S. businesses resulting from H-1B 
nonimmigrants who choose not to pursue LPR status in the United States. 
By providing the possibility of employment authorization to certain H-4 
dependent spouses, the rule will ameliorate certain disincentives for 
talented H-1B nonimmigrants to permanently remain in the United States 
and continue contributing to the U.S. economy as LPRs. This is an 
important goal considering the contributions such individuals make to 
entrepreneurship and research and development, which are highly 
correlated with overall economic growth and job creation. The rule also 
will bring U.S. immigration policies concerning this class of highly 
skilled workers more in line with those of other countries that are 
also competing to attract and retain similar highly skilled workers.

DATES: This final rule is effective May 26, 2015.

FOR FURTHER INFORMATION CONTACT: Jennifer Oppenheim, Adjudications 
Officer, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW., Suite 1100, Washington, DC 20529-2140; Telephone (202) 272-
1470.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Legal Authority
    C. Summary of the Major Provisions of the Regulatory Action
    D. Summary of Costs and Benefits
    E. Effective Date
II. Background
    A. Current Framework
    B. Proposed Rule
    C. Final Rule
III. Public Comments on Proposed Rule
    A. Summary of Public Comments
    B. Classes Eligible for Employment Authorization
    1. Comments Supporting the Rule
    2. Comments Requesting Expansion of the Rule
    3. Comments Opposing the Rule
    4. Comments Requesting a More Restrictive Policy
    C. Legal Authority To Extend Employment Authorization to Certain 
H-4 Dependent Spouses
    D. Comments on the Analysis of Executive Orders 12866 and 13653
    1. Comments Related to Labor Market Impacts
    2. Comments on the Volume Estimate and Methodology
    3. Comments on Specific Costs and Benefits Discussed in the 
Analysis
    E. Comments on the Application for Employment Authorization
    1. Streamlined or Modernized Filing Procedures
    2. Employment Authorization Document (Form I-766) Validity 
Period
    3. EAD Renewals
    4. Acceptable Evidentiary Documentation
    5. Concurrent Filings
    6. Premium Processing
    7. Automatic Extensions of Work Authorization
    8. Filing Fees
    9. Possible Restrictions on EADs Issued to H-4 Dependent Spouses
    10. Circular EADs
    11. Form I-765 Worksheets
    12. Other Related Issues
    F. Fraud and Public Safety Concerns
    1. Falsifying Credentials and Marriage Fraud
    2. Prohibition Related to Felony Charges and Convictions
    3. Unauthorized Employment
    4. Employer Abuse of H-1B Nonimmigrants and H-4 Dependent 
Spouses
    G. General Comments
    H. Modifications to the H-1B Program and Immigrant Visa 
Processing
    1. H-1B Visa Program
    2. Immigrant Visa Processing and Adjustment of Status
    I. H-1B Nonimmigrant's Maintenance of Status
    J. Environmental Issues
    K. Reporting
    L. Implementation
IV. Statutory and Regulatory Requirements
    A. Unfunded Mandates Reform Act of 1995
    B. Small Business Regulatory Enforcement Fairness Act of 1996
    C. Executive Orders 12866 and 13563
    1. Summary
    2. Purpose of the Rule
    3. Volume Estimate
    4. Costs
    5. Benefits
    6. Alternatives Considered
    D. Regulatory Flexibility Act
    E. Executive Order 13132
    F. Executive Order 12988
    G. Paperwork Reduction Act
V. Regulatory Amendments

I. Executive Summary

A. Purpose of the Regulatory Action

    DHS does not currently extend eligibility for employment 
authorization to H-4 dependents (spouses and unmarried children under 
21 years of age) of H-1B nonimmigrants. See 8 CFR 214.2(h)(9)(iv). The 
lack of employment authorization for H-4 dependent spouses often gives 
rise to personal and economic hardships for the families of H-1B 
nonimmigrants. Such hardships may increase the longer these families 
remain in the United States. In many cases, H-1B nonimmigrants and 
their families who wish to acquire LPR status in the United States must 
wait many years for employment-based immigrant visas to become 
available. These waiting periods increase the disincentives for H-1B 
nonimmigrants to pursue LPR status and thus increase the difficulties 
that U.S. employers have in retaining highly educated and highly 
skilled nonimmigrant workers. These difficulties can be particularly 
acute in cases where an H-1B nonimmigrant's family is experiencing 
economic strain or other stresses resulting from the H-4 dependent 
spouse's inability to seek employment in the United States. Retaining 
highly skilled workers who intend to acquire LPR status is important to 
U.S. businesses and to the Nation given the contributions of these 
individuals to U.S. businesses and the U.S. economy. These individuals, 
for example, contribute to advances in entrepreneurship and research 
and development, which are highly correlated with overall economic 
growth and job creation.
    In this final rule, DHS is amending its regulations to extend 
eligibility for employment authorization to certain H-4 dependent 
spouses of H-1B nonimmigrants to support the retention

[[Page 10285]]

of highly skilled workers who are on the path to lawful permanent 
residence. DHS expects this change to reduce the economic burdens and 
personal stresses that H-1B nonimmigrants and their families may 
experience during the transition from nonimmigrant to LPR status while, 
at the same time, facilitating their integration into American society. 
As such, the change will ameliorate certain disincentives that 
currently lead H-1B nonimmigrants to abandon efforts to remain in the 
United States while seeking LPR status, thereby minimizing disruptions 
to U.S. businesses employing such workers. The change will also support 
the U.S. economy, as the contributions H-1B nonimmigrants make to 
entrepreneurship and research and development are expected to assist 
overall economic growth and job creation. The rule also will bring U.S. 
immigration policies concerning this class of highly skilled workers 
more in line with those of other countries that compete to attract 
similar highly skilled workers.

B. Legal Authority

    The authority of the Secretary of Homeland Security (Secretary) for 
this regulatory amendment can be found in section 102 of the Homeland 
Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, 
and section 103(a) of the Immigration and Nationality Act (INA), 8 
U.S.C. 1103(a), which authorize the Secretary to administer and enforce 
the immigration and nationality laws. In addition, section 
274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the 
Secretary's authority to extend employment to noncitizens in the United 
States.

C. Summary of the Major Provisions of This Regulatory Action

    On May 12, 2014, DHS published a notice of proposed rulemaking, 
which proposed to amend DHS regulations at 8 CFR 214.2(h)(9)(iv) and 
274a.12(c) to extend eligibility for employment authorization to H-4 
dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants 
either: (1) Are the principal beneficiaries of an approved Immigrant 
Petition for Alien Worker (Form I-140); or (2) have been granted H-1B 
status pursuant to sections 106(a) and (b) of the American 
Competitiveness in the Twenty-first Century Act of 2000, Public Law 
107-273, 116 Stat. 1758, as amended by the 21st Century Department of 
Justice Appropriations Act, Public Law 107-273, 116 Stat. 1758 (2002) 
(collectively referred to as ``AC21''). See Employment Authorization 
for Certain H-4 Dependent Spouses, 79 FR 26886 (May 12, 2014). After 
careful consideration of public comments, DHS is adopting the proposed 
regulatory amendments with minor wording changes to improve clarity and 
readability.\1\ Also, DHS is making additional revisions to 8 CFR 
214.2(h)(9)(iv) and 8 CFR 274a.13(d) to permit H-4 dependent spouses 
under this rule to concurrently file an Application for Employment 
Authorization (Form I-765) with an Application to Extend/Change 
Nonimmigrant Status (Form I-539).
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    \1\ In this final rule, DHS has amended its estimate of the 
volume of individuals who may become eligible to apply for 
employment authorization pursuant to this rulemaking. The impact on 
the U.S. labor market resulting from this change is negligible, and 
the justification for the rule remains unaffected by this change.
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D. Summary of Costs and Benefits

    In preparing this final rule, DHS updated its estimates of the 
impacted population by examining more recent data, correcting data 
entry errors made in calculating the population of H-4 dependent 
spouses assumed to be in the backlog, and revising the estimate of the 
population eligible pursuant to AC21. This final rule is expected to 
result in as many as 179,600 H-4 dependent spouses being eligible to 
apply for employment authorization during the first year of 
implementation. As many as 55,000 H-4 dependent spouses will be 
eligible to apply for employment authorization each year after the 
first year of implementation. DHS stresses that these are maximum 
estimates of the number of H-4 dependent spouses who may become 
eligible to apply for employment authorization. Although the estimates 
are larger than those provided in the preamble to the proposed rule, 
the initial year estimate (the year with the largest number of 
potential eligible applicants) provided in this final rule still 
represents far less than one percent of the overall U.S. workforce. 
DHS's rationale for this rule thus remains unchanged, especially as the 
changes made in this rule simply alleviate the long wait for employment 
authorization that these H-4 dependent spouses endure through the green 
card process, and accelerate the timeframe within which they generally 
will become eligible to apply for employment authorization (such as 
when they apply for adjustment of status).
    The costs associated with this final rule stem from filing fees and 
the opportunity costs of time associated with filing an Application for 
Employment Authorization, Form I-765 (``Application for Employment 
Authorization'' or ``Form I-765''), as well as the estimated cost of 
procuring two passport-style photos. These costs will only be borne by 
the H-4 dependent spouses who choose to apply for employment 
authorization. The costs to the Federal Government of adjudicating and 
processing the applications are covered by the application fee for Form 
I-765.
    DHS expects these regulatory amendments to provide increased 
incentives to H-1B nonimmigrants and their families who have begun the 
immigration process to remain permanently in the United States and 
continue contributing to the Nation's economy as they complete this 
process. DHS believes these regulatory changes will also minimize 
disruptions to petitioning U.S. employers. A summary of the costs and 
benefits of the rule is presented in Table 1.

  Table 1--Total Costs and Benefits of Initial Employment Authorization for Certain H-4 Dependent Spouses 10-Yr
                                      Present Value Estimates at 3% and 7%
                                                   [$Millions]
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                                                                           Sum of years 2-10  Total over 10-year
                                                        Year 1 estimate     (55,000 filers    period of analysis
                                                       (179,600 filers)        annually)               *
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3% Discount Rate:
    Total Costs Incurred by Filers @3%..............               $76.1              $181.3              $257.4
7% Discount Rate:
    Total Costs Incurred by Filers @7%..............                73.2               146.1               219.3
                                                     -----------------------------------------------------------

[[Page 10286]]

 
Qualitative Benefits................................  This rule is intended to remove a disincentive to pursuing
                                                      lawful permanent resident (LPR) status due to the
                                                      potentially long wait for employment-based immigrant visas
                                                      for many H-1B nonimmigrants and their family members. This
                                                      rule will encourage H-1B nonimmigrants who have already
                                                      taken steps to become LPRs to not abandon their efforts
                                                      because their H-4 dependent spouses are unable to work. By
                                                      encouraging H-1B nonimmigrants to continue in their
                                                      pursuit of becoming LPRs, this rule would minimize
                                                      disruptions to petitioning U.S. employers. Additionally,
                                                      eligible H-4 dependent spouses who participate in the
                                                      labor market will benefit financially. DHS also
                                                      anticipates that the socioeconomic benefits associated
                                                      with permitting H-4 spouses to participate in the labor
                                                      market will assist H-1B families in integrating into the
                                                      U.S. community and economy.
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* Note: Totals may not sum due to rounding.

E. Effective Date

    This final rule will be effective on May 26, 2015, 90 days from the 
date of publication in the Federal Register. DHS has determined that 
this 90-day effective date is necessary to guarantee that USCIS will 
have sufficient resources available to process and adjudicate 
Applications for Employment Authorization filed by eligible H-4 
dependent spouses under this rule while maintaining excellent customer 
service for all USCIS stakeholders, including H-1B employers, H-1B 
nonimmigrants, and their families. With this 90-day effective date, 
USCIS will be able to implement this rule in a manner that will avoid 
wholesale delays of processing other petitions and applications, in 
particular those H-1B petitioners seeking to file petitions before the 
FY 2016 cap is reached. DHS believes that this effective date balances 
the desire of U.S. employers to attract new H-1B workers, while 
retaining current H-1B workers who are seeking employment-based LPR 
status.

II. Background

A. Current Framework

    Under the H-1B nonimmigrant classification, a U.S. employer or 
agent may file a petition to employ a temporary foreign worker in the 
United States to perform services in a specialty occupation, services 
related to a Department of Defense (DOD) cooperative research and 
development project or coproduction project, or services of 
distinguished merit and ability in the field of fashion modeling. See 
INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); 8 CFR 
214.2(h)(4). To employ a temporary nonimmigrant worker to perform such 
services (except for DOD-related services), a U.S. petitioner must 
first obtain a certification from the U.S. Department of Labor (DOL) 
confirming that the petitioner has filed a labor condition application 
(LCA) in the occupational specialty in which the nonimmigrant will be 
employed. See 8 CFR 214.2(h)(4)(i)(B) and 8 CFR 214.2(h)(1)(ii)(B). 
Upon certification of the LCA, the petitioner may file with U.S. 
Citizenship and Immigration Services (USCIS) a Petition for a 
Nonimmigrant Worker (Form I-129 with H supplements) (``H-1B petition'' 
or ``Form I-129'').
    If USCIS approves the H-1B petition, the approved H-1B status is 
valid for an initial period of up to three years. USCIS may grant 
extensions for up to an additional three years, such that the total 
period of the H-1B nonimmigrant's admission in the United States does 
not exceed six years. See INA section 214(g)(4), 8 U.S.C. 1184(g)(4); 8 
CFR 214.2(h)(9)(iii)(A)(1), (3), and 8 CFR 214.2(h)(15)(ii)(B)(1). At 
the end of the six-year period, the nonimmigrant generally must depart 
from the United States unless he or she: (1) Falls within one of the 
exceptions to the six-year limit; \2\ (2) has changed to another 
nonimmigrant status; (3) or has applied to adjust status to that of an 
LPR.\3\ See INA sections 245(a) and 248(a), 8 U.S.C. 1255(a) and 
1258(a); 8 CFR 245.1 and 8 CFR 248.1. The dependents (i.e., spouse and 
unmarried children under 21 years of age) of the H-1B nonimmigrants are 
entitled to H-4 status and are subject to the same period of admission 
and limitations as the H-1B nonimmigrant. See 8 CFR 214.2(h)(9)(iv).
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    \2\ These exceptions to the six-year limit include those 
authorized under sections 104(c) and 106(a) and (b) of AC21. Under 
sections 106(a) and (b) of AC21, an H-1B nonimmigrant who is the 
beneficiary of a permanent labor certification application or an 
employment-based immigrant petition that was filed at least 365 days 
prior to reaching the end of the sixth year of H-1B status may 
obtain H-1B status beyond the sixth year, in one year increments. 
See AC21 sections 106(a)-(b), as amended. Another exception is found 
in section 104(c) of AC21. Under that provision, H-1B nonimmigrants 
with approved Form I-140 petitions who are unable to adjust status 
because of per-country visa limits are able to extend their H-1B 
stay in three-year increments until their adjustment of status 
applications have been adjudicated. See AC21 section 104(c).
    \3\ For H-1B nonimmigrants performing DOD-related services, the 
approved H-1B status is valid for an initial period of up to five 
years, after which the H-1B nonimmigrants may obtain up to an 
additional five years of admission for a total period of admission 
not to exceed 10 years. See 8 CFR 214.2(h)(9)(iii)(A)(2), 
(h)(15)(ii)(B)(2). These H-1B nonimmigrants cannot benefit from AC21 
sections 106(a) or (b), because those sections solely relate to the 
generally applicable six-year limitation on H-1B status under INA 
section 214(g)(4), whereas the requirements for H-1B status for DOD-
related services, including the 10-year limitation, were established 
in section 222 of the Immigration Act of 1990, Pub. L. 101-649, 104 
Stat. 4978; see 8 U.S.C. 1101 note. This rule, however, will 
authorize eligibility for employment authorization of H-4 dependents 
of H-1B nonimmigrants performing DOD-related services if the H-1B 
nonimmigrant is the beneficiary of an approved I-140 petition.
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    For H-1B nonimmigrants seeking to adjust their status to or 
otherwise acquire LPR status through employment-based (EB) immigration, 
an employer generally must first file a petition on their behalf. See 
INA section 204(a), 8 U.S.C. 1154(a). An H-1B nonimmigrant may seek LPR 
status under one of the following five EB preference categories:

[[Page 10287]]

    <bullet> First preference (EB-1)--Aliens with extraordinary 
ability, outstanding professors and researchers, and certain 
multinational executives and managers;
    <bullet> Second preference (EB-2)--Aliens who are members of the 
professions holding advanced degrees or aliens of exceptional ability;
    <bullet> Third preference (EB-3)--Skilled workers, professionals, 
and other workers;
    <bullet> Fourth preference (EB-4)--Special immigrants (see INA 
section 101(a)(27), 8 U.S.C. 1101(a)(27)); and
    <bullet> Fifth preference (EB-5)--Employment creation immigrants. 
See INA section 203(b), 8 U.S.C. 1153(b).
    Generally, the second (EB-2) and third (EB-3) preference categories 
require employers to obtain an approved permanent labor certification 
from DOL prior to filing an immigrant petition with USCIS on behalf of 
the worker. See INA section 212(a)(5)(A), 8 U.S.C. 1182(a)(5)(A); 8 CFR 
204.5(a). To apply for adjustment to LPR status, the alien must be the 
beneficiary of an immigrant visa that is immediately available. See INA 
sections 201(a), 203(b) and (d), and 245(a); 8 U.S.C. 1151(a), 1153(b) 
and (d), 1255(a).
    The EB-2 and EB-3 immigrant visa categories for certain 
chargeability areas are oversubscribed, causing long delays before 
applicants in those categories, including H-1B nonimmigrants, are able 
to obtain LPR status. U.S. businesses employing H-1B nonimmigrants 
suffer disruptions when such workers are required to leave the United 
States at the termination of their H-1B status as a result of these 
delays. To ameliorate those disruptions, Congress enacted provisions in 
AC21 that allow for the extension of H-1B status past the sixth year 
for workers who are the beneficiaries of certain pending or approved 
employment-based immigrant visa petitions or labor certification 
applications. See S. Rep. No. 106-260, at 22 (2000) (``These immigrants 
would otherwise be forced to return home at the conclusion of their 
allotted time in H-1B status, disrupting projects and American workers. 
The provision enables these individuals to remain in H-1B status until 
they are able to receive an immigrant visa number and acquire lawful 
permanent residence through either adjustment of status in the United 
States or through consular processing abroad, thus limiting the 
disruption to American businesses.'').
    DHS cannot alleviate the delays in visa processing due to the 
numerical limitations set by statute and the resultant unavailability 
of immigrant visa numbers.\4\ DHS, however, can alleviate a significant 
obstacle that may encourage highly skilled foreign workers to leave the 
United States,\5\ thereby preventing significant disruptions to U.S. 
employers in furtherance of the congressional intent expressed through 
AC21.
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    \4\ The worldwide level of EB immigrant visas that may be issued 
each fiscal year is set at 140,000 visas, plus the difference 
between the maximum number of immigrant visas which may be issued 
under section 203(a) of the INA, 8 U.S.C. 1153(a) (relating to 
family-sponsored immigrants) and the number of visas used under that 
section for the previous fiscal year. See INA section 201(d), 8 
U.S.C. 1151(d). These EB visa numbers are also limited by country. 
Generally, in any fiscal year, foreign nationals born in any single 
country may use no more than 7 percent of the total number of 
immigrant visas available in the family- and employment-based 
immigrant visa classifications. See INA section 202(a)(2), 8 U.S.C. 
1152(a)(2).
    \5\ These obstacles, moreover, may discourage highly skilled 
foreign workers from seeking employment in the United States in the 
first instance. This final rule will diminish that possibility.
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B. Proposed Rule

    On May 12, 2014, DHS published a proposed rule in the Federal 
Register at 79 FR 26886, proposing to amend:
    <bullet> 8 CFR 214.2(h)(9)(iv) to extend eligibility for employment 
authorization to H-4 dependent spouses of H-1B nonimmigrants if the H-
1B nonimmigrants either: are the principal beneficiaries of an approved 
Immigrant Petition for Alien Worker (Form I-140); \6\ or have been 
granted H-1B status pursuant to sections 106(a) and (b) of AC21; and
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    \6\ The H-1B nonimmigrant must be the principal beneficiary of 
the approved I-140 petition, not the derivative beneficiary, 
consistent with the preamble to the proposed rule: ``Specifically, 
DHS is proposing to limit employment authorization to H-4 dependent 
spouses only during AC21 extension periods granted to the H-1B 
principal worker or after the H-1B principal has obtained an 
approved Immigrant Petition for Alien Worker.'' See 79 FR at 26891 
(emphasis added); see also id. at 26896 (estimating ``annual demand 
flow of H-4 dependent spouses who would be eligible to apply for 
initial work authorization under this proposed rule . . . based on: 
(1) the number of approved Immigrant Petitions for Alien Worker 
(Forms I-140) where the principal beneficiary is currently in H-1B 
status'').
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    <bullet> 8 CFR 274a.12(c) by adding paragraph (26) listing the H-4 
dependent spouses described in revised 8 CFR 214.2(h)(9)(iv) as a new 
class of aliens eligible to request employment authorization from 
USCIS. Aliens within this class would only be authorized for employment 
following approval of their Application for Employment Authorization 
(Form I-765) by USCIS and receipt of an Employment Authorization 
Document (Form I-766) (``EAD'').

DHS also proposed conforming changes to Form I-765. DHS proposed adding 
H-4 dependent spouses described in the proposed rule to the classes of 
aliens eligible to file the form, with the required fee. DHS also 
proposed a list of the types of supporting documents that may be 
submitted with Form I-765 to establish eligibility.
    DHS received nearly 13,000 public comments to the proposed rule. An 
overwhelming percentage of commenters (approximately 85 percent) 
supported the proposal, while a small percentage of commenters 
(approximately 10 percent) opposed the proposal. Approximately 3.5 
percent of commenters expressed a mixed opinion about the proposal.

C. Final Rule

    In preparing this final rule, DHS considered all of the public 
comments contained in the docket. Although estimates of the current 
population of H-4 dependent spouses who will be eligible for employment 
authorization pursuant to this rule have changed, the effect of the 
revision does not affect the justification for the rule, and DHS is 
adopting the regulatory amendments set forth in the proposed rule with 
only minor, non-substantive changes to 8 CFR 214.2(h)(9)(iv) to improve 
clarity and readability. These technical changes clarify that an H-4 
dependent spouse covered by this rule should include with his or her 
Application for Employment Authorization (Form I-765) evidence 
demonstrating that he or she is currently in H-4 status and that the H-
1B nonimmigrant is currently in H-1B status. Also, in response to 
public comments regarding filing procedures for Applications for 
Employment Authorization (Forms I-765) under this rule, DHS is making 
conforming revisions to 8 CFR 214.2(h)(9)(iv) and 8 CFR 274a.13(d) to 
permit H-4 dependent spouses under this rule to concurrently file the 
Form I-765 with an Application to Extend/Change Nonimmigrant Status 
(Form I-539).
    The rationale for the proposed rule and the reasoning provided in 
its background section remain valid with respect to these regulatory 
amendments. This final rule does not address comments seeking changes 
in U.S. laws, regulations, or agency policies that are unrelated to 
this rulemaking. This final rule also does not change the procedures or 
policies of other DHS components or federal agencies, or resolve issues 
outside the scope of this rulemaking. Comments may be reviewed at the 
Federal Docket Management System (FDMS) at http://www.regulations.gov, 
docket number USCIS-2010-0017.

[[Page 10288]]

III. Public Comments on the Proposed Rule

A. Summary of Public Comments

    In response to the proposed rule, DHS received nearly 13,000 
comments during the 60-day public comment period. Commenters included, 
among others, individuals, employers, academics, labor organizations, 
immigrant advocacy groups, attorneys, and nonprofit organizations. More 
than 250 comments were also submitted through mass mailing campaigns.
    While opinions on the proposed rule varied, a substantial majority 
(approximately 85 percent) of commenters supported the extension of 
employment authorization to the class of H-4 dependent spouses 
described in the proposed rulemaking. Supporters of the proposed rule 
agreed that it would help the United States to attract and retain 
highly skilled foreign workers; alleviate economic burdens on H-1B 
nonimmigrants and their families during the transition from 
nonimmigrant to LPR status; and promote family unity. Some supporters 
also stated that the rule furthers women's rights, noting the impact 
the rule's change will have on promoting financial independence for the 
H-4 dependent spouse, potentially reducing factors which could lead to 
domestic violence, and assuaging negative health effects (such as 
depression).\7\ Others voiced the belief that this rule aligns with 
core U.S. values, asserting that employment authorization should be 
considered a constitutional or human rights issue or an issue of equal 
opportunity.
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    \7\ An H-4 dependent spouse who is the victim of domestic 
violence may be independently eligible for employment authorization 
under certain circumstances. As noted in the proposed rule, section 
814(b) of the Violence Against Women Act and Department of Justice 
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, amended 
the INA by adding new section 204(a)(1)(K), 8 U.S.C. 1154(a)(1)(K), 
which provides for employment authorization incident to the approval 
of a VAWA self-petition. Section 814(c) of VAWA 2005 amended the INA 
by adding new section 106, which provides eligibility for employment 
authorization to battered spouses of aliens admitted in certain 
nonimmigrant statuses, including H-1B status.
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    Commenters commonly stated that if spouses are authorized for 
employment, families would be more stable, contribute more to their 
local communities, and more fully focus on their future in the United 
States. Additionally, commenters outlined ways they thought this 
proposal would help the U.S. economy, such as by increasing disposable 
income, promoting job creation, generating greater tax revenue, and 
increasing home sales. Several commenters agreed that extending 
employment authorization as described in the rule will promote U.S. 
leadership in innovation by strengthening the country's ability to 
recruit and retain sought-after talent from around the world. Finally, 
some commenters noted that this rule would facilitate U.S. businesses' 
ability to create additional U.S. jobs by improving the retention of 
workers with critical science, technology, engineering and math (STEM) 
skills.
    The approximately 10 percent of commenters who opposed the proposed 
rule cited to potential adverse effects of the rule, including 
displacement of U.S. workers, increasing U.S. unemployment, and 
lowering of wages. Some commenters expressed concern that the rule may 
negatively affect other nonimmigrant categories. Other commenters were 
concerned that this rule may cause the lowering of minimum working 
standards in certain sectors of the economy, such as in the Information 
Technology sector. Some commenters questioned DHS's legal authority to 
promulgate this regulatory change.
    About 3.5 percent of commenters had a mixed opinion about the 
proposed regulation. Some of these commenters were concerned about the 
size and scope of the class made eligible for employment authorization 
under the rule; some argued that the described class is too 
restrictive, while others argued that it is too broad. Other commenters 
expressed concern about the possibility of fraud. Approximately 200 
commenters (about 1.5 percent of commenters) submitted responses that 
are beyond the scope of this rulemaking, such as comments discussing 
U.S. politics but not addressing immigration, submissions from 
individuals who sent in their resumes or discussed their professional 
qualifications without opining on the proposed rule, and comments on 
the merits of other commenter's views, but not on the proposed changes.
    DHS has reviewed all of the public comments received in response to 
the proposed rule and addresses relevant comments in this final rule. 
DHS's responses are grouped by subject area, with a focus on the most 
common issues and suggestions raised by commenters.

B. Classes Eligible for Employment Authorization

1. Comments Supporting the Rule
    The comments supporting the proposed rule largely underscored the 
positive socioeconomic benefits this rule would have for certain H-1B 
nonimmigrants and their H-4 dependent spouses. For example, several 
commenters noted that while they knew about the restriction on H-4 
employment before coming to the United States, they did not anticipate 
such a long wait to apply for LPR status or the emotional toll that 
long-term unemployment would take on them and their families. Other 
commenters noted they have not been able to apply for a social security 
card or a driver's license in certain states because they do not have 
an Employment Authorization Document (EAD) (Form I-766). Approximately 
200 commenters noted that the current policy of allowing only the H-1B 
nonimmigrant to work often led to family separation or the decision to 
immigrate to other countries that authorize employment for dependent 
spouses.
    A few commenters described their families as dual H-1B nonimmigrant 
households and supported the principle of both spouses working. These 
commenters voiced appreciation for the changes in the proposed rule, 
which will allow the H-4 dependent spouse to seek employment while the 
H-1B nonimmigrant continues to pursue permanent residence.
    More than a thousand commenters believe this change will help U.S. 
businesses retain highly skilled H-1B nonimmigrants. More than 500 
commenters asserted that the addition of skilled H-4 dependent spouses 
into the workforce will help U.S. employers. More than 60 commenters 
stated that they had planned to move out of the United States, but will 
instead remain and pursue LPR status as a result of this rule change. 
Approximately two dozen commenters noted that they had already moved 
out of the United States due to the prohibition on employment for H-4 
dependent spouses. Several commenters stated that they are planning to 
leave the United States in the near future because H-4 dependent 
spouses cannot work under the current rules.
    Nearly 400 commenters who supported the final rule also asserted 
that the regulation should be implemented without change as a matter of 
fairness. According to the comments, the regulation will help H-1B 
nonimmigrants and their families who have maintained legal status for 
years, contributed to the economy, and demonstrated the intent to 
permanently remain in the United States.
    The overwhelmingly positive responses from the public to the 
proposed rule has strengthened DHS's view, as expressed in the proposed 
rule,

[[Page 10289]]

that extending employment authorization eligibility to the class of H-4 
dependent spouses of H-1B nonimmigrants described in this rulemaking 
will have net beneficial results. Among other things, the rule will 
increase the likelihood that H-1B nonimmigrants will continue to pursue 
the LPR process through completion. DHS further believes that this rule 
will provide increased incentives to U.S. employers to begin the 
immigrant petitioning process on behalf of H-1B nonimmigrants, 
encourage more H-1B nonimmigrants to pursue lawful permanent residence, 
and bolster U.S. competitiveness. This rule will also decrease 
workforce disruptions and other harms among U.S. employers caused by 
the departure from the United States of H-1B nonimmigrants for whom 
businesses have filed employment-based immigrant visa petitions. This 
policy supports Congress' intent in enacting AC21. See S. Rep. No. 106-
260, at 2-3, 23 (2000).
    A handful of commenters supporting the proposed rule requested 
clarification on whether H-4 dependent spouses will be permitted to 
file for employment authorization based on their classification as an 
H-4 dependent spouse if they have a pending adjustment of status 
application. DHS confirms that under this rule, H-4 dependent spouses 
with pending adjustment of status applications are still eligible for 
employment authorization on the basis of their H-4 classification. They 
may choose to apply for employment authorization based on either the H-
4 dependent spouse category established by this rule under new 8 CFR 
274a.12(c)(26) or the adjustment of status category under 8 CFR 
274a.12(c)(9).
    Another commenter asked if H-4 dependent spouses of H-1B 
nonimmigrants who have extended their stay under section 104(c) of AC21 
would be eligible for work authorization. DHS confirms that H-4 
dependent spouses of H-1B nonimmigrants who have extended their stay 
under section 104(c) of AC21 are eligible for employment authorization 
under this rule. Section 104(c) of AC21 applies to a subset of H-1B 
nonimmigrants who are the principal beneficiaries of approved Form I-
140 petitions.\8\ Because this rule provides eligibility for employment 
authorization to H-4 dependent spouses of all H-1B nonimmigrants who 
are the principal beneficiaries of approved Form I-140 petitions, it 
captures the section 104(c) subset. DHS has thus determined that it is 
unnecessary to include section 104(c) of AC21 as a separate basis for 
employment authorization eligibility in this rule.
---------------------------------------------------------------------------

    \8\ See Mem. from Donald Neufeld, Acting Assoc. Dir., Domestic 
Operations, USCIS, Supplemental Guidance Relating to Processing 
Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B 
Petitions, and I-485 Adjustment Applications Affected by the 
American Competitiveness in the Twenty-First Century Act of 2000 
(AC21) (Pub. L. 106-313), as amended, and the American 
Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title 
IV of Div. C. of Public Law 105-277, at 6 (May 30, 2008) (``AC21 
Sec.  104(c) is applicable when an alien . . . is the beneficiary of 
an approved I-140 petition.'') (emphasis in original).
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2. Comments Requesting Expansion of the Rule
i. H-4 Dependent Spouses of H-1B1, H-2 and H-3 Nonimmigrants
    Slightly over 200 commenters requested that DHS extend eligibility 
for employment authorization to the H-4 dependent spouses of H 
nonimmigrants who are not in H-1B status (H-1B1, H-2 and H-3 
nonimmigrants), and not only to the spouses of certain H-1B 
nonimmigrants who have begun the process of permanent residence through 
employment.\9\ Some of these commenters expressed that this expansion 
would also help U.S. competitiveness by attracting more skilled workers 
from abroad.
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    \9\ The H-4 classification includes dependents of H-2A temporary 
agricultural workers, H-2B temporary nonagricultural workers, H-3 
trainees, H-1B specialty occupation workers, and H-1B1 Free Trade 
Agreement specialty occupation workers from Singapore and Chile. See 
INA 101(a)(15)(H); see also 8 CFR 214.2(h)(9)(iv).
---------------------------------------------------------------------------

    DHS has determined that expansion of employment authorization 
beyond the class of H-4 dependent spouses described in the proposed 
rule is not appropriate at this time, and it has therefore not included 
such an expansion in this final rule. First, the Department believes 
this rule best achieves DHS's goals of helping U.S. employers minimize 
potential disruptions caused by the departure from the United States of 
certain highly skilled workers, enhancing U.S. employer's ability to 
attract and retain such workers, and increasing America's economic 
competitiveness.
    Second, DHS notes two significant differences between H-1B 
nonimmigrants and other H nonimmigrants under the immigration laws. The 
INA explicitly permits H-1B nonimmigrants to have what is known as 
``dual intent,'' pursuant to which an H-1B nonimmigrant may be the 
beneficiary of an immigrant visa petition filed under section 204 of 
the INA or otherwise seek LPR status without evidencing an intention to 
abandon a foreign residence for purposes of obtaining or maintaining H-
1B status. See INA 214(h); see also 8 CFR 214.2(h)(16). Further, in 
enacting AC21, Congress permitted H-1B nonimmigrants who are the 
beneficiaries of certain pending or approved employment-based immigrant 
visa petitions or labor certification applications to remain in the 
United States beyond the six-year statutory maximum period of stay. 
Congress therefore has passed legislation specifically encouraging, and 
removing impediments to, the ability of H-1B nonimmigrants to seek LPR 
status, such that they may more readily contribute permanently to 
United States economic sustainability and growth. Congress has not 
extended similar benefits to other H nonimmigrants, including H-1B1 
(Free Trade Agreement specialty workers from Chile and Singapore), H-2A 
(temporary agricultural workers), H-2B (temporary nonagricultural 
workers), or H-3 nonimmigrants (trainees). Extending employment 
authorization to certain H-4 dependent spouses of H-1B nonimmigrants, 
and not to H-4 dependent spouses of other H nonimmigrants, thus serves 
to advance the Department's immediate interest in furthering the aims 
of AC21.\10\
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    \10\ As noted in the proposed rule, to ease the negative impact 
of immigrant visa processing delays, Congress intended that the AC21 
provisions allowing for extension of H-1B status past the sixth year 
for workers who are the beneficiaries of certain pending or approved 
employment-based immigrant visa petitions or labor certification 
applications would minimize disruption to U.S. businesses employing 
H-1B workers that would result if such workers were required to 
leave the United States. See S. Rep. No. 106-260, at 22 (2000) 
(``These immigrants would otherwise be forced to return home at the 
conclusion of their allotted time in H-1B status, disrupting 
projects and American workers. The provision enables these 
individuals to remain in H-1B status until they are able to receive 
an immigrant visa number and acquire LPR status either through 
adjustment of status in the United States or through consular 
processing abroad, thus limiting the disruption to American 
businesses.'').
---------------------------------------------------------------------------

    Finally, as noted in the proposed rule, DHS may consider expanding 
H-4 employment eligibility in the future. See Ctr. for Biological 
Diversity v. EPA, 722 F.3d 401, 410 (D.C. Cir. 2013) (observing that 
```agencies have great discretion to treat a problem partially''') 
(quoting City of Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C. Cir. 
1989)); Lamers Dairy Inc. v. U.S. Dep't of Agric., 379 F.3d 466, 475 
(7th Cir. 2004) (``[T]he government must be allowed leeway to approach 
a perceived problem incrementally. Similarly, equal protection does not 
require a governmental entity to choose between attacking every aspect 
of a problem or not attacking the problem at all.'') (quotation marks 
omitted) (citing FCC v. Beach Commc'ns, 508 U.S. 307,

[[Page 10290]]

316 (1993); and Dandridge v. Williams, 397 U.S. 471, 487 (1970)).
ii. H-4 Dependent Spouses of All H-1B Nonimmigrants
    Over 150 commenters noted that all dependent spouses of other 
nonimmigrant categories, such as the spouses of L-1 (intracompany 
transferee), E-1 (treaty trader), E-2 (treaty investor), and E-3 
(Australian specialty occupation workers) nonimmigrants, are eligible 
to apply for employment authorization These commenters stated that 
because the employment-based nonimmigrant categories are similar to 
each other, all H-4 dependent spouses of H-1B nonimmigrants--rather 
than only certain subclasses of H-4 dependent spouses--likewise should 
be eligible for employment authorization.
    DHS, however, recognizes an important difference between the 
dependent spouse category of H-1B nonimmigrants and those of L-1, E-1, 
E-2, and E-3 nonimmigrants. Specifically, Congress directed by statute 
that DHS grant employment authorization to all spouses of L-1, E-1, E-
2, and E-3 nonimmigrants.\11\ See Public Law 107-124 (2002) (amending 
the INA to expressly authorize employment for spouses of E 
nonimmigrants); Public Law 107-125 (2002) (same for spouses of L 
nonimmigrants); see also INA section 214(c)(2)(E) & (e)(6), 8 U.S.C. 
1184(c)(2)(E) & (e)(6). Congress has not provided such statutory 
direction with respect to the spouses of H-1B nonimmigrants. Thus, the 
fact that the INA authorizes dependent spouses of L and E nonimmigrants 
for U.S. employment does not indicate that H-4 dependent spouses of all 
H-1B nonimmigrants also must be authorized to work.
---------------------------------------------------------------------------

    \11\ DHS is implementing the statutory provisions authorizing 
employment of spouses of L-1, E-1, E-2, and E-3 nonimmigrants, 
though the regulations have not been revised.
---------------------------------------------------------------------------

    In extending such employment authorization through regulation, DHS 
studied congressional intent with respect to H-1B nonimmigrants. 
Although Congress has not specifically required extending employment 
authorization to dependent spouses of H-1B nonimmigrants, Congress did 
recognize in AC21 the importance of addressing the lengthy delays faced 
by such workers seeking to obtain LPR status. Consistent with this 
congressional concern, and the legal authorities vested in the 
Secretary of Homeland Security described in Section C, below, DHS has 
chosen to limit this regulation within that statutory framework, and 
the Department declines to extend the changes made by this rule to the 
H-4 dependent spouses of all H-1B nonimmigrants at this time.
iii. Employment Authorization Incident to Status
    Over 60 commenters requested that H-4 dependent spouses be granted 
employment authorization ``incident to status,'' which would relieve 
the need to apply for employment authorization before receiving it. 
These commenters generally recommended that DHS provide employment 
authorization incident to status by authorizing the employment of H-4 
dependent spouses through amendment to 8 CFR 274a.12(a) instead of 8 
CFR 274a.12(c), which provides employment authorization through case-
by-case, discretionary adjudications of each individual request.\12\ 
For those classes of aliens listed in 8 CFR 274a.12(a), employment 
authorization is automatic upon the grant of immigration status. 
Examples of classes of aliens who are employment authorized incident to 
status under 8 CFR 274a.12(a) are LPRs, asylees, and refugees.
---------------------------------------------------------------------------

    \12\ DHS regulations provide for three categories of persons 
eligible for employment authorization: (1) aliens authorized for 
employment incident to status, see 8 CFR 274a.12(a); (2) aliens 
authorized to work for a specific employer incident to status, see 8 
CFR 274a.12(b); and (3) aliens who must apply to USCIS for 
employment authorization, see 8 CFR 274a.12(c).
---------------------------------------------------------------------------

    DHS is unable to classify H-4 dependent spouses described in this 
rule as employment authorized incident to status. Unlike other 
noncitizens who are employment authorized incident to status, H-4 
dependent spouses will not be eligible for employment authorization 
based solely on their immigration status. Rather, H-4 dependent spouses 
must meet certain additional conditions before they can be granted 
employment authorization, and current USCIS systems cannot 
automatically and independently determine whether such conditions have 
been met. USCIS systems, for example, cannot independently or 
automatically determine whether an H-4 dependent spouse has the 
requisite spousal relationship to an H-1B nonimmigrant who either is 
the beneficiary of an approved Form I-140 petition or has been granted 
H-1B nonimmigrant status under sections 106(a) and (b) of AC21; that 
determination must be made by a USCIS adjudicator. DHS has therefore 
determined that it must require the filing of an application requesting 
employment authorization, see 8 CFR 274a.12(c) and 8 CFR 274a.13, 
before it can extend employment authorization to the class of H-4 
dependent spouses described in this rule. This application process will 
ensure that only eligible H-4 dependent spouses receive a grant of 
employment authorization and proper documentation evidencing such 
employment authorization, and will avoid granting employment 
authorization to ineligible spouses.
iv. Employment Authorization at Different Points in Time
    More than a dozen commenters requested that the class of H-4 
dependent spouses who are eligible for employment authorization be 
expanded by permitting them to file at points in time different from 
those provided in the proposed rule. DHS carefully considered these 
suggestions for determining when an H-4 dependent spouse should be 
eligible for employment authorization. For the reasons that follow, DHS 
has determined that it will not adopt the commenters' suggestions in 
this final rule.
(1) H-1B Nonimmigrants With Pending PERM Labor Certifications or Form 
I-140 Petitions
    Some commenters requested that DHS make H-4 dependent spouses 
eligible for employment authorization when their H-1B nonimmigrant 
spouses have filed permanent (PERM) labor certifications with DOL.\13\ 
Other commenters suggested providing such eligibility when H-1B 
nonimmigrants have Form I-140 petitions or adjustment of status 
applications pending with USCIS.
---------------------------------------------------------------------------

    \13\ Currently, employers seeking to file immigrant visa 
petitions on behalf of noncitizens in certain employment-based 
preference categories must first obtain a labor certification under 
DOL's PERM program. See generally INA sections 204(b), 212(a)(5); 8 
U.S.C. 1154(b), 1182(a)(5); 8 CFR 204.5(k)-(l); 20 CFR pt. 656.
---------------------------------------------------------------------------

    DHS believes that the basis for eligibility in the proposed rule 
reasonably addresses H-4 dependent spouses' interests in obtaining 
employment authorization at the earliest possible time in advancing the 
Department's policy goals of attracting and retaining highly skilled 
workers and promoting compliance with U.S. immigration laws. In 
furtherance of these goals, DHS has chosen to limit eligibility for 
employment authorization to cases where the H-1B nonimmigrant either: 
(1) Is the principal beneficiary of an approved Form I-140 and thus is 
on a path to lawful permanent residence that is reasonably likely to 
conclude successfully; or (2) has been granted H-

[[Page 10291]]

1B status under sections 106(a) and (b) of AC21. This approach provides 
several benefits to the Department.
    Among other things, the approach allows DHS to confirm a 
significant record of compliance with U.S. immigration laws, which 
indicates the likelihood of continued compliance in the future. 
Requiring an approved Form I-140 petition, for example, reduces the 
risk of frivolous labor certification and immigrant visa petition 
filings for the purpose of making H-4 dependent spouses eligible for 
employment authorization, because the approval of the petition 
generally signifies that the foreign worker is eligible for the 
underlying immigrant classification. In contrast, authorizing 
employment immediately upon the filing of a PERM application or Form I-
140 petition (rather than after the 365-day waiting period or the 
approval of the Form I-140 petition) could produce a reasonable 
possibility of granting employment authorization to an H-4 dependent 
spouse where the H-1B nonimmigrant's case might not be approvable and 
the H-1B nonimmigrant has a relatively shorter record of compliance 
with U.S. immigration laws. The eligibility requirements in this rule 
also allow for better control of processing, as it is difficult for 
USCIS to track another agency's filings, such as PERM applications. 
Finally, with respect to the comment suggesting that employment should 
be authorized at the point when an adjustment of status application is 
pending, Department regulations already provide eligibility for 
employment authorization in that situation. See 8 CFR 274a.12(c)(9).
(2) H-1B Nonimmigrants Who Are Eligible for AC21 Extensions Under 
Sections 106(a) and (b)
    Some commenters expressed support for an alternative policy that 
would extend employment authorization to certain H-4 dependent spouses 
of H-1B nonimmigrants who are eligible for, but have not yet been 
approved for, extensions of status under sections 106(a) and (b) of 
AC21. DHS declines to adopt such a policy because it creates the 
possibility of granting employment authorization to H-4 dependent 
spouses of H-1B nonimmigrants who are later denied the extension of H-
1B status. For instance, a labor certification or Form I-140 petition 
may have been timely filed on behalf of the H-1B nonimmigrant 365 days 
prior to the prospective expiration of his or her six-year limitation 
of stay, thus making the H-1B nonimmigrant eligible for an extension 
under AC21. But the labor certification or Form I-140 petition 
ultimately may be denied before the H-1B nonimmigrant files for and 
receives the AC21 extension. Additionally, if the individual is 
determined to be ineligible for the H-1B extension, he or she would no 
longer be maintaining H-1B status and the U.S. employer will be unable 
to retain the worker. Accordingly, DHS believes the sounder policy is 
to extend employment authorization to H-4 dependent spouses of H-1B 
nonimmigrants who have been granted H-1B status pursuant to AC21, 
ensuring that such H-1B nonimmigrants are maintaining H-1B status and 
are significantly down the path to obtaining LPR status.
(3) Pending Form I-140 Immigrant Petitions With New Employer
    Fewer than a dozen commenters requested that DHS extend employment 
authorization to H-4 dependent spouses in cases where the H-1B 
nonimmigrants have transferred their employment to a new employer and 
are in the process of obtaining approval of a new Form I-140 petition. 
As noted above, however, authorizing employment based solely on the 
filing (rather than the approval) of a PERM application or Form I-140 
petition is likely to encourage frivolous filings to allow the H-4 
dependent spouse to obtain employment authorization while the filings 
remain pending. DHS thus is not extending this rule on the basis of 
pending PERM applications or Form I-140 petitions. By requiring that a 
Form I-140 petition first be approved, DHS will further disincentivize 
frivolous filings and better serve the goal of extending the 
immigration benefit of this rule to only those spouses of H-1B 
nonimmigrants who are genuinely on the path to lawful permanent 
residence.
v. H-4 Minors
    Less than 40 commenters requested that DHS authorize employment for 
certain H-4 dependent minor children whose H-1B nonimmigrant parent is 
the beneficiary of an approved Form I-140 or has been granted an 
extension of his or her authorized period of admission in the United 
States under AC21. These commenters cited concerns about H-4 dependent 
children being unable to obtain the same types of work experience as 
their peers, being unable to afford post-secondary education in the 
United States, and losing eligibility for H-4 status through age (known 
as ``aging-out'' \14\) before their parents can file for adjustment of 
status. Some commenters also raised fairness concerns, given the 
eligibility under DHS deferred action policies that make eligible for 
employment authorization certain individuals who came to the United 
States unlawfully as children under the age of 16.\15\
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    \14\ To qualify as a ``child'' for purposes of the immigration 
laws, an individual generally must be unmarried and under the age of 
21. See INA section 101(b)(1), 8 U.S.C. 1101(b)(1). The Child Status 
Protection Act (CSPA) amended the INA by permitting certain 
individuals over the age of 21 to continue to qualify as a child for 
purposes of certain immigration benefits. See Public Law 107-208 
(2002). If an individual becomes too old to qualify as a child under 
the immigration law, and in turn no longer can derivatively benefit 
from a petition or application on behalf of a parent, he or she is 
described as ``aging out.''
    \15\ On June 15, 2012, the Secretary of Homeland Security 
announced that certain aliens who came to the United States as 
children and meet several guidelines may request consideration for 
deferred action from removal for a period of two years, subject to 
renewal. This policy is generally referred to as Deferred Action for 
Childhood Arrivals (DACA). On November 20, 2014, the Secretary 
announced expanded eligibility guidelines for consideration under 
the DACA policy and extended the period of deferred action and work 
authorization from two years to three years.
---------------------------------------------------------------------------

    DHS declines to adopt the commenters' suggestions to expand 
eligibility for employment authorization to H-4 dependent minor 
children. As reflected by the comments, DHS does not view the 
employment of dependent minor children in the United States as a 
significant deciding factor for an H-1B nonimmigrant considering 
whether to remain in the United States and seek LPR status while 
continuing employment with his or her U.S. employer. Also, as stated in 
the proposed rule, extending employment eligibility to certain H-4 
dependent spouses will alleviate a significant portion of the potential 
economic burdens that H-1B nonimmigrants currently may face, such as 
paying for academic expenses for their children, during the transition 
from nonimmigrant to LPR status as a result of the inability of their 
dependent family members to work in the United States.
    Additionally, limiting employment authorization to H-4 dependent 
spouses is consistent with the treatment of dependent minors in other 
nonimmigrant employment categories (such as the L and E nonimmigrant 
categories), which provide employment authorization to dependent 
spouses but not dependent children. And in the instances where DHS has 
extended eligibility for employment authorization to minor children, 
foreign policy reasons have been an underlying consideration. DHS has 
extended eligibility for employment authorization to minors within the 
following nonimmigrant categories: Dependents of Taipei Economic and 
Cultural

[[Page 10292]]

Representative Office (TECRO) E-1 nonimmigrants; J-2 dependent children 
of J-1 foreign exchange visitors; dependents of A-1 and A-2 foreign 
government officials; dependents of G-1, G-3, and G-4 international 
organization officials; and dependents of NATO officials. Each of these 
instances involves foreign policy considerations that are not present 
in the H-1B nonimmigrant program.
    DHS also declines to extend employment authorization to H-4 
dependent children who age out and lose their H-4 status. Providing 
work authorization in such circumstances would encourage such 
individuals to violate the terms of their authorized stay. Moreover, 
comments suggesting that the Department should make changes to prevent 
H-4 dependent minor children from aging out are outside the scope of 
this rulemaking, which in no way involves the ability of a minor to 
maintain H-4 status or eligibility for LPR status as a derivative 
beneficiary of a parent's immigrant petition.
    Finally, the circumstances of persons eligible for consideration of 
Deferred Action for Childhood Arrivals (``DACA'') are distinct from 
those of H-4 dependent minor children, and the policy for authorizing 
employment for individuals who have received deferred action has no 
bearing on whether H-4 dependent minor children should be eligible to 
apply for employment authorization. The DACA program concerns the 
departmental exercise of prosecutorial discretion with the aim of 
ensuring that limited DHS enforcement resources are appropriately 
focused on the Department's highest enforcement priorities. The policy 
aims underlying this rule, as described above, are different, and for 
the reasons already discussed do not justify extending employment 
authorization to the H-4 dependent children of H-1B nonimmigrants.
vi. Principal Beneficiaries
    A few dozen commenters requested that the rule also allow H-1B 
nonimmigrants to receive Employment Authorization Documents (EADs), 
which authorize employment without regard to employer, incident to 
status.\16\ One commenter requested that DHS provide one EAD to 
households in which both spouses have H-1B status in order to avoid 
necessitating one of the spouses to change to H-4 status. A few 
commenters requested an EAD for an H-1B nonimmigrant whose spouse is 
also in H-1B status, but has been granted a different length of stay.
---------------------------------------------------------------------------

    \16\ The commenters' refer to these unrestricted EADs as ``open 
market'' EADs. In contrast, classes of aliens listed in 8 CFR 
274a.12(b), such as H-1B nonimmigrants, are authorized for 
employment only with a specific employer.
---------------------------------------------------------------------------

    DHS declines to adopt the commenters' suggestions regarding EADs 
for H-1B nonimmigrants. If an H-1B nonimmigrant would like to apply for 
an EAD as the dependent spouse of an eligible H-1B nonimmigrant, he or 
she must first change to H-4 status. Moreover, issuance of an EAD to an 
H-1B nonimmigrant authorizing employment other than with his or her 
petitioning employer is incompatible with the H-1B classification, 
which allows employment only with the petitioning employer.\17\ If an 
H-1B nonimmigrant works on an EAD for an employer other than his or her 
petitioning employer, he or she may be violating the terms and 
conditions of his or her petition and, therefore, may no longer be 
maintaining a valid nonimmigrant status.
---------------------------------------------------------------------------

    \17\ See INA sections 101(a)(15)(H)(i)(b) (requiring that DOL 
determine and certify that ``the intending employer has filed'' an 
LCA) (emphasis added), 212(n) (establishing LCA requirements 
applicable to employers of H-1B nonimmigrants), 214(c) (requiring 
employers file petitions with the Secretary of Homeland Security to 
employ an H-1B nonimmigrant); 8 U.S.C. 1101(a)(15)(H)(i)(b), 
1182(n), 1184(c).
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vii. H-4 Dependent Spouses Not Selected in the H-1B Lottery
    Less than 20 commenters requested a carve-out for H-4 dependent 
spouses who had filed an H-1B petition but who were not selected in the 
H-1B computer-generated random selection process (``H-1B 
lottery'').\18\ Although DHS appreciates the frustration that may 
result from not being selected in the H-1B lottery, the Department 
declines to extend eligibility for employment authorization to these H-
4 dependent spouses. This rule is not a substitute for the H-1B program 
and is not intended to circumvent the H-1B lottery. A primary purpose 
of this rule is to help U.S. businesses retain the H-1B nonimmigrants 
for whom they have already filed an employment-based immigrant 
petition. Expanding the rule to help nonimmigrants in other situations 
does not directly support this goal.
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    \18\ If USCIS receives more than a sufficient number of H-1B 
petitions to reach the general statutory cap of 65,000 visas or the 
20,000 cap under the advanced degree exemption during the filing 
period, see INA section 214(g)(1)(A), (5)(C), 8 U.S.C. 
1184(g)(1)(A), (5)(C), USCIS holds a computer-generated random 
selection process, or lottery, to select enough petitions to meet 
the statutory caps. See 8 CFR 214.2(h)(8)(ii)(B). USCIS rejects and 
returns cap-subject petitions not randomly selected, with filing 
fees, unless a petition is found to be a duplicate filing.
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viii. Other Nonimmigrant Categories
    Less than 20 commenters requested that DHS authorize employment for 
the dependents of principals in other employment-based nonimmigrant 
classifications, such as dependents of O-1 nonimmigrants (O-3) \19\ and 
TN nonimmigrants (TD).\20\ One commenter specifically requested 
employment authorization for children of O-1 and TN nonimmigrant highly 
skilled workers who are on the path to lawful permanent residence.
---------------------------------------------------------------------------

    \19\ An O-3 nonimmigrant is a dependent of an O-1 nonimmigrant. 
The O-1 nonimmigrant classification applies to individuals who 
possess extraordinary ability in the sciences, arts, education, 
business, or athletics, or who have a demonstrated record of 
extraordinary achievement in the motion picture or television 
industry and have been recognized nationally or internationally for 
those achievements. See INA section 101(a)(15)(O), 8 U.S.C. 
1101(a)(15)(O); 8 CFR 214.2(o).
    \20\ A TD nonimmigrant is a dependent of a TN nonimmigrant. The 
TN nonimmigrant classification permits qualified Canadian and 
Mexican citizens to seek temporary entry into the United States to 
engage in business activities at a professional level. See INA 
section 214(e), 8 U.S.C. 1184(e); 8 CFR 214.6.
---------------------------------------------------------------------------

    DHS declines to expand eligibility for employment authorization in 
this rule to the dependents of principals with other nonimmigrant 
classifications. DHS is narrowly tailoring the expansion of eligibility 
for employment authorization to meet several policy objectives, 
including the goal of helping U.S. businesses retain highly skilled H-
1B nonimmigrants who are on the path to lawful permanent residence. DHS 
may consider expanding employment authorization to other dependent 
nonimmigrant categories in the future.
    Moreover, there are significant differences between the H-1B 
nonimmigrant classification on the one hand, and the O-1 and TN 
classifications on the other, that inform the Department's decision to 
limit applicability of this rule to only H-4 dependent spouses. The 
spouses of H-1B nonimmigrants, for example, generally have greater need 
for the benefits of this rule than the spouses of O-1 nonimmigrants. O-
1 nonimmigrants typically apply for LPR status through the EB-1 
immigrant visa preference category, which has not historically suffered 
from visa backlogs. This allows the spouses of O-1 nonimmigrants to 
generally obtain employment authorization much more quickly than the 
spouses of H-1B nonimmigrants who typically seek LPR status through the 
EB-2 and EB-3 preference categories, which have historically been 
subject to lengthy backlogs.

[[Page 10293]]

    The spouses of TN nonimmigrants are also not similarly situated to 
the spouses of H-1B nonimmigrants. Unlike H-1B status, TN status stems 
from an international agreement--the North American Free Trade 
Agreement (NAFTA)--negotiated between the United States and foreign 
nations. As such, changes to that status implicate reciprocal 
international trade and foreign policy concerns that are generally not 
implicated with respect to the H-1B classification and are beyond the 
scope of this rulemaking.
3. Comments Opposing the Rule
    Approximately ten percent of commenters opposed extending 
employment authorization to the class of H-4 dependent spouses 
described in the proposed rule. Many of these commenters were generally 
concerned that the rule would result in the displacement of U.S. 
workers; exacerbation of the nation's unemployment rate; and a decrease 
in wages. All comments discussing economic issues, both in opposition 
to and in support of the proposed rule, are discussed in Part III, 
Public Comments on Proposed Rule, Section D, Comments on Executive 
Orders 12866 and 13563.
    Commenters also questioned whether the change in the proposed rule 
is actually necessary in light of other provisions of U.S. immigration 
law. Other commenters suggested that the proposed rule would have an 
adverse impact on other immigration categories or nationalities. DHS 
has carefully considered these concerns. But for the reasons that 
follow, DHS has decided to finalize the rule as proposed.
i. Change Unnecessary
    More than 20 commenters believed that because current immigration 
laws provide the ability for H-4 dependent spouses to change status to 
an employment-authorized category, the proposed rule would not provide 
any additional incentives for H-1B nonimmigrants to remain in the 
United States and continue to pursue LPR status. One commenter stated 
that most of the comments posted on www.regulations.gov failed to 
indicate that potential immigrants have abandoned the immigration 
process, or have decided against coming to the United States in the 
first place, because their spouses would not be authorized to work.
    DHS disagrees with these commenters and believes that the changes 
made by this rule are warranted. DHS acknowledges that thousands of 
commenters who voiced support for the rule did not provide specific 
reasons for their support, including whether H-1B nonimmigrants were 
abandoning their applications for LPR status. DHS notes, however, that 
more than 60 commenters specifically indicated they planned to abandon 
their pursuit of lawful permanent residence without the changes in the 
proposed rule. Approximately, two dozen commenters stated that they 
left the United States because the current regulations preclude H-4 
dependent spouses from engaging in employment. And several U.S. 
employers submitted comments in which they describe the loss of valued 
H-1B nonimmigrants because of the restriction on spousal employment. 
These employers noted that the changes in the proposed rule would help 
to align America's immigration laws with the policies of other 
countries that allow spousal employment. DHS agrees with these 
employers and other commenters who supported the proposed rule, and the 
Department believes that this change will support U.S. businesses and 
strengthen U.S. competitiveness. DHS also believes that this rule will 
fulfill its intended purpose and encourage certain highly skilled H-1B 
nonimmigrants to remain in the United States and continue to pursue 
their efforts to become LPRs.
ii. Impact on Other Categories or Nationalities
    Less than 80 commenters suggested that the proposed rule would harm 
persons in other nonimmigrant categories or with certain nationalities. 
A few commenters who had changed status from H-4 status to F-1 
nonimmigrant student status, for example, thought the rule was unfair 
because F-1 nonimmigrant graduates who had exhausted their Optional 
Practical Training had no path to employment authorization except 
through another principal nonimmigrant classification, such as the H-1B 
classification. These commenters argued that the rule would put recent 
F-1 nonimmigrant graduates at a disadvantage because they would have to 
go through the H-1B petition process whereas the qualifying H-4 
dependent spouses would be eligible for an EAD authorizing employment 
without regard to employer.
    DHS appreciates these commenters' concerns but does not believe 
that the changes made by this rule will adversely affect other 
classifications or specific nationalities. Rather, DHS expects that 
this rule will help to partially alleviate the adverse impact of 
oversubscription of certain chargeability categories in the EB-2 and 
EB-3 categories on certain H-1B nonimmigrants and their families, 
without negatively impacting others. DHS has narrowly tailored this 
rule to provide employment authorization to only those H-4 dependent 
spouses of H-1B nonimmigrants who have taken active steps to become 
LPRs. The rule does not affect any other nonimmigrant category, nor 
does the rule make distinctions among persons of different 
nationalities. Moreover, as noted throughout this rule, DHS expects 
that because of the small size of the newly eligible class of workers, 
the rule should not negatively impact the employment of persons in 
other nonimmigrant categories. DHS also notes that the H-4 dependent 
spouses at issue may already obtain employment authorization when they 
file their applications to adjust status; this rule simply accelerates 
the timeframe in which they may enter the labor market.
iii. Impact on Universities
    Several commenters suggested that because it is common for H-4 
dependent spouses to change status to F-1 nonimmigrant student status 
to enhance their marketability and use their time productively, 
universities may lose revenue from decreased enrollment if such H-4 
dependent spouses are allowed to work pursuant to this rule. DHS 
carefully considered but declined to address these concerns. First, 
this rule does not directly regulate U.S. institutions of higher 
education or its students (including F-1 nonimmigrants), and any 
impacts on university enrollments or revenues would be an indirect 
impact of this rule. Second, the rule merely expands the choices 
available to H-4 dependent spouses. While the rule expands the ability 
for such individuals to obtain employment authorization, it does 
nothing to restrict or otherwise change their ability to engage in 
study to the extent authorized by the Department in accordance with 
law. Third, even if the opportunity for employment authorization may 
mean that fewer H-4 dependent spouses eventually choose to enroll as 
nonimmigrant students, it is not clear how this rule could 
significantly impact revenues at colleges and universities considering 
the relatively small number of people impacted by this rule.\21\ 
Indeed, other

[[Page 10294]]

commenters noted that this rule could actually help university 
enrollment, as the increased ability for H-1B nonimmigrant families to 
generate income would further enable the H-1B nonimmigrant and H-4 
dependent spouse to engage in higher education or contribute towards 
the higher education of their children. Consequently, it is uncertain 
if the net impact of this rule is to reduce overall enrollment and 
revenues, given the offsetting effects of this rule suggested by 
commenters. Commenters did not provide statistics or data demonstrating 
that this rule will have significant adverse effects on U.S. 
institutions of higher education or that DHS should limit employment 
opportunities for H-4 dependent spouses to protect revenue sources. 
Finally, DHS notes that it received several supportive comments both 
from representatives of the academic community and also from self-
identified H-4 dependent spouses who viewed this rulemaking as 
positive.
---------------------------------------------------------------------------

    \21\ According to Department of Education statistics, 
approximately 21 million students are expected to enroll in 
postsecondary degree-granting institutions in fall 2014. See http://nces.ed.gov/fastfacts/display.asp?id=372. Given the relatively large 
student population enrolled in American schools and the narrow 
population impacted by this rule, DHS believes this rule would not 
significantly impact net college enrollments.
---------------------------------------------------------------------------

4. Comments Requesting a More Restrictive Policy
    Slightly over 180 commenters suggested limiting employment 
authorization to a more restricted class of H-4 nonimmigrants. For the 
reasons discussed below, DHS has determined that it will not adopt the 
commenters' suggestions in this final rule.
i. Certain Skills or Sectors
    A number of commenters recommended granting employment 
authorization only to H-4 dependent spouses who have certain skills or 
work in certain sectors of the economy. Other commenters requested that 
DHS limit employment authorization under the rule to H-4 dependent 
spouses who hold advanced degrees from U.S. universities or have 
degrees in certain subjects, such as subjects in STEM fields. Some 
commenters were concerned that eligible H-4 dependents will be able to 
compete across all occupations, not just skilled professions.
    DHS declines to restrict employment authorization eligibility to H-
4 dependent spouses with certain skills or degrees. A primary purpose 
of this rule is to help U.S. employers retain H-1B nonimmigrant 
employees who have demonstrated the intent to become LPRs, which would 
provide substantial benefits to these employers and the U.S. economy. 
This rule is intended to provide this incentive to H-1B nonimmigrants 
regardless of the academic backgrounds of their H-4 dependent spouses. 
Limiting the rule to benefit only H-1B nonimmigrants whose H-4 
dependent spouses have certain skills or hold certain educational 
credentials would undermine the effectiveness of this rule.
ii. Reciprocity
    A number of commenters recommended limiting employment 
authorization to H-4 dependent spouses who are from countries that 
authorize employment for spouses of U.S. citizens in a similar 
immigration status abroad (i.e., when there is reciprocity). DHS's 
focus in this rule, however, is on retaining H-1B nonimmigrants for the 
benefit of U.S. employers and the U.S. economy, including by helping 
businesses minimize expensive disruptions caused by the departures from 
the United States of certain highly skilled H-1B nonimmigrants. As 
noted above, limiting the rule to affect only a subset of H-1B 
nonimmigrant families based on reciprocity would weaken the rule's 
efficacy. Moreover, reciprocity would implicate foreign policy 
considerations that are outside the scope of this rulemaking.
iii. Limiting Employment Authorization Based on AC21 Extensions
    A few commenters requested that DHS extend eligibility for 
employment authorization only to the H-4 dependent spouses of H-1B 
nonimmigrants who are beneficiaries of AC21 extensions. DHS discussed 
this option in the proposed rule. The Department appreciates this 
suggestion, but believes that also extending employment authorization 
to the spouses of H-1B nonimmigrants who are the beneficiaries of 
approved Form I-140 petitions more effectively accomplishes the goals 
of this rulemaking. For the benefit of U.S. businesses and the U.S. 
economy, DHS believes the rule should provide incentives for those 
workers who have established certain eligibility requirements and 
demonstrated intent to reside permanently in the United States and 
contribute to the U.S. economy. Extending employment authorization to 
H-4 dependent spouses of H-1B nonimmigrants with either approved Form 
I-140 petitions or H-1B status granted pursuant to sections 106(a) and 
(b) of AC21 encourages a greater number of professionals with high-
demand skills to remain in the United States. Moreover, by tying 
eligibility for employment authorization to approved Form I-140 
petitions, DHS is reaching the H-4 dependent spouses of H-1B 
nonimmigrants granted status under section 104(c) of AC21. DHS thus 
declines to exclude from this rule the spouses of H-1B nonimmigrants 
who have approved Form I-140 petitions.

C. Legal Authority To Extend Employment Authorization to Certain H-4 
Dependent Spouses

    Over 40 commenters questioned DHS's legal authority to extend 
employment authorization to certain H-4 dependent spouses, often 
emphasizing that employment for spouses of L and E nonimmigrants is 
expressly authorized by statute.\22\ Several commenters argued that it 
was the role of Congress, not the Executive Branch, to create 
immigration laws.
---------------------------------------------------------------------------

    \22\ See INA section 214(c)(2)(E), (e)(6); 8 U.S.C. 
1184(c)(2)(E), (e)(6).
---------------------------------------------------------------------------

    DHS disagrees with the view that this rule exceeds the Secretary's 
authority. In the INA, Congress provided the Secretary with broad 
authority to administer and enforce the immigration laws. The Secretary 
is expressly authorized to promulgate rules and ``perform such other 
acts as he deems necessary for carrying out his authority'' based upon 
considerations rationally related to the immigration laws. INA section 
103(a)(3), 8 U.S.C. 1103(a)(3). Congress also provided the Secretary 
with the more specific statutory authority to set by regulation the 
conditions of nonimmigrant admission. INA section 214(a), 8 U.S.C. 
1184(a). These provisions grant the Secretary broad discretion to 
determine the most effective way to administer the laws. See Narenji v. 
Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979) (observing that the INA 
``need not specifically authorize each and every action taken by the 
Attorney General [(now Secretary of Homeland Security)], so long as his 
action is reasonably related to the duties imposed upon him''); see 
also Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (noting 
``broad discretion exercised by immigration officials'' under the 
immigration laws).
    More specifically, section 274A(h)(3)(B) of the INA, 8 U.S.C. 
1324a(h)(3)(B), recognizes that employment may be authorized by statute 
or by the Secretary. See Arizona Dream Act Coalition v. Brewer, 757 
F.3d 1053, 1062 (9th Cir. 2014) (``Congress has given the Executive 
Branch broad discretion to determine when noncitizens may work in the 
United States.''); Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 
1990) (describing the authority recognized by INA 274A(h)(3) as 
``permissive'' and largely ``unfettered''). Thus, the commenters' 
arguments that DHS lacks authority to grant employment eligibility to 
H-4 dependent spouses because Congress

[[Page 10295]]

has not specifically required it by statute are misplaced. The fact 
that Congress has directed the Secretary to authorize employment to 
specific classes of aliens (such as the spouses of E and L 
nonimmigrants) does not mean that the Secretary is precluded from 
extending employment authorization to other classes of aliens by 
regulation as contemplated by section 274A(h)(3)(B) of the INA, 8 
U.S.C. 1324a(h)(3)(B).\23\
---------------------------------------------------------------------------

    \23\ Moreover, in the few instances in which Congress has 
determined to limit employment authorization for certain classes of 
aliens, it has done so expressly. See INA section 208(d)(2), 8 
U.S.C. 1158(d)(2) (``An [asylum] applicant who is not otherwise 
eligible for employment authorization shall not be granted such 
authorization prior to 180 days after the date of filing of the 
application for asylum.''); INA section 236(a)(3), 8 U.S.C. 
1226(a)(3) (restricting employment authorization for aliens who have 
been arrested and are in removal proceedings unless the alien is a 
lawful permanent resident ``or otherwise would (without regard to 
removal proceedings) be provided work authorization''); INA section 
241(a)(7), 8 U.S.C. 1231(a)(7) (providing that alien who has been 
ordered removed is ineligible for work authorization unless the 
Secretary finds that the alien cannot be removed for lack of a 
country willing to receive the alien or ``the removal of the alien 
is otherwise impracticable or contrary to the public interest'').
---------------------------------------------------------------------------

D. Comments on the Analysis of Executive Orders 12866 and 13563

1. Comments Related to Labor Market Impacts
    Of the approximately ten percent of commenters who generally 
opposed the rule, a majority of those commenters asserted that allowing 
eligible H-4 dependent spouses to receive employment authorization 
would have negative economic impacts. Chief among these concerns was 
the impact of the proposed rule on the U.S. labor market. Many 
commenters believed that the proposed rule would increase competition 
for jobs; exacerbate the nation's unemployment rate; drive down wages; 
and otherwise negatively impact native U.S. workers. A few commenters 
also suggested that allowing H-4 dependent spouses to enter the labor 
market would negatively impact highly skilled H-1B nonimmigrants.
    DHS appreciates these viewpoints and has carefully considered the 
potential for negative labor market impacts throughout this rulemaking. 
DHS affirms its belief expressed in the proposed rule that any labor 
market impacts will be minimal. As a preliminary matter, this 
regulatory change applies only to the H-4 dependent spouses of H-1B 
nonimmigrants who have actively taken certain steps to obtain LPR 
status. As such, the rule simply accelerates the timeframe by which 
these spouses are able to enter the U.S. labor market. Importantly, the 
rule does not require eligible H-4 spouses to submit an application for 
an EAD, nor does the granting of an EAD guarantee that H-4 spouses will 
obtain employment. Further, the relatively small number of people 
affected by the rule limits any impact the rule may have on the labor 
market. Although DHS, in this final rule, increased its estimate of the 
number of H-4 dependent spouses who might benefit from the rule, the 
maximum number of such spouses who could request employment 
authorization and actually enter the labor market in the initial year 
(the year with the largest number of potential applicants) represents 
only 0.1156 percent of the overall U.S. civilian labor force. This 
increased estimate does not change the Department's conclusion that 
this rule will have minimal labor market impacts.
    Moreover, with respect to the potential that this rule and the 
policy goals of retaining certain highly skilled H-1B nonimmigrants may 
cause native-worker displacement and wage reduction, DHS notes that 
there is a large body of research that supports the findings that 
immigration of highly skilled workers is beneficial to the U.S. economy 
and labor market in the long-term. For example, several commenters 
provided studies that refuted arguments that highly skilled immigrants 
are used for ``cheap labor,'' \24\ while many others offered evidence 
that showed the positive effects of immigration, and particularly high-
skilled immigration, on the U.S. labor market.\25\ These commenters 
pointed to a Congressional Budget Office report and academic study \26\ 
that showed that immigration generally produces a modest increase in 
the wages of native-born workers in the long-run, and that any negative 
economic effects--in the form of wages--are largely felt by other 
immigrant workers with similar education and skill levels. DHS also 
notes that the Immigration and Nationality Act's employment-related 
antidiscrimination provision, enforced by the Department of Justice's 
Office of Special Counsel for Immigration-Related Unfair Employment 
Practices, prohibits employment discrimination in hiring, firing and 
recruiting and referring for a fee based on citizenship status. In 
general, employers may not reject U.S. workers in favor of nonimmigrant 
visa holders based on citizenship status. INA section 274B(a)(1)(B), 8 
U.S.C. 1324b(a)(1)(B).
---------------------------------------------------------------------------

    \24\ For example, commenters cited to the following studies in 
refuting the claim that H-1B workers are a source of cheap labor: 
Lofstrom, M. & Hayes, J., ``H-1Bs: How Do They Stack Up to US Born 
Workers? IZA Discussion Paper No. 6259'' (Dec. 2011), available at 
http://ssrn.com/abstract=1981215; Rothwell, J. & Ruiz, N. ``H-1B 
Visas and the STEM Shortage: A Research Brief'' (May 11, 2013), 
available at http://ssrn.com/abstract=2262872.
    \25\ Commenters cited to the following to highlight positive 
effects of highly skilled immigration: National Foundation for 
American Policy, ``H-1B Visas and Job Creation'' (Mar. 2008), 
available at http://www.nfap.com/pdf/080311h1b.pdf.
    \26\ Commenters cited to the following studies in highlighting 
the effects of immigration: Congressional Budget Office, ``The 
Economic Impact of S. 744, the Border Security, Economic 
Opportunity, and Immigration Modernization Act,'' June 18, 2013, 
available at http://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf; Mathews, D., ``No, the CBO Report 
Doesn't Mean Immigration Brings Down Wages,'' June 19, 2013, 
available at http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/19/no-the-cbo-report-doesnt-mean-immigration-brings-down-wages/; 
Ottaviano, G. & Peri, G., Rethinking the Effects of Immigration on 
Wages (March 2010), available at http://economics.ucdavis.edu/people/gperi/site/papers/rethinking-the-effect-of-immigration-on-wages.
---------------------------------------------------------------------------

    From a labor market perspective, it is important to note that there 
are not a fixed number of jobs in the United States. Basic principles 
of labor market economics recognize that individuals not only fill 
jobs, but also stimulate the economy and create demand for jobs through 
increased consumption of goods and services. On this point, 
approximately 2,600 commenters thought that the regulation as proposed 
will stimulate the U.S. economy through the spillover effects 
associated with dual-income households, thus leading to increased 
spending throughout the economy, greater investments in real estate, 
the potential for job creation, and increased tax revenue. Relatedly, 
other commenters expressed their belief that the rule will bolster U.S. 
competitiveness, economic strength and innovation. A few commenters 
noted that the proposal will enhance the ability of U.S. businesses to 
attract and retain highly skilled immigrants, resulting in potential 
economic gains to U.S. companies and the U.S. economy.
    In addition, commenters also highlighted several social benefits of 
the proposed rule, including: Family unification; overall family 
financial security and stability; providing a means for H-4 dependent 
spouses to be financially independent; and significantly aiding the H-
1B nonimmigrant and his or her family in integrating into American 
culture and communities. DHS appreciates these comments and agrees that 
the rule will provide economic and social benefits to the H-1B 
nonimmigrant worker and his or her family as they wait to obtain LPR 
status.

[[Page 10296]]

    Finally, a few commenters suggested that allowing H-4 dependent 
spouses to enter the labor market would negatively impact the job 
prospects of highly skilled H-1B nonimmigrants. These commenters 
generally suggested, without providing empirical support, that by 
allowing H-4 dependent spouses to have an EAD, U.S. employers will 
prefer to hire such individuals rather than to go through the 
additional effort of hiring an H-1B nonimmigrant. DHS appreciates these 
concerns but lacks data on the skillsets or educational levels of H-4 
dependent spouses to indicate that they will take jobs that are 
typically held by highly skilled H-1B nonimmigrants. Nor, as noted 
above, is the U.S. labor market static; individuals who supply labor 
also create demand for labor through increased consumption and other 
spending. The fact that this rule provides employment authorization 
only to H-4 dependent spouses who are tied to an H-1B nonimmigrant who 
is sufficiently on the path to LPR status further mitigates the 
possibility that this rule will cause employers to hire H-4 dependent 
spouses over H-1B nonimmigrants. DHS anticipates that employers will 
continue to fully utilize the H-1B program and does not believe that 
this rule will adversely affect the job prospects of H-1B 
nonimmigrants.
2. Comments on the Volume Estimate and Methodology
    Of the ten percent of commenters who opposed the rule, many felt 
that the Department's estimates of the potential eligible population 
were too low. Two commenters suggested that DHS employ a different 
methodology to arrive at the estimated number of likely eligible H-4 
dependent spouses. One commenter provided highlighted excerpts of the 
Yearbook of Immigration Statistics, as published by the DHS Office of 
Immigration Statistics, containing statistics on individuals who had 
obtained LPR status under employment-based preference categories. The 
commenter highlighted the total number of spouses who had adjusted 
status to lawful permanent residence and the total number of 
individuals who adjusted to LPR status under the first through third 
employment-based preference categories. DHS assumes that the commenter 
was suggesting that DHS simply apply that historical average to 
estimate the number of H-4 dependent spouses who will be eligible to 
apply for employment authorization under this rule.
    DHS appreciates this response and carefully considered this 
approach. However, that approach fails to account for those H-1B 
nonimmigrants and their families who are currently in the backlog 
waiting for immigrant visas. Furthermore, that approach would also 
overstate the likely number of H-4 dependent spouses who would be 
eligible to apply for employment authorization under this rule. That is 
so because the approach does not account for the proportion of 
employment-based adjustment applicants who are in H-1B status as 
compared to those adjusting from another nonimmigrant status. Moreover, 
not all spouses of H-1B nonimmigrants are currently in H-4 nonimmigrant 
status. For these reasons, DHS disagrees with the commenters' suggested 
approach to estimating the volume of H-4 dependent spouses who will be 
eligible to apply for employment authorization under this rule. 
Estimating the eligible population by taking into account the backlog 
of H-1B nonimmigrants who have approved I-140 petitions but are unable 
to adjust status due to a lack of available immigrant visas, along with 
the estimated future flow of newly eligible spouses, is a more accurate 
methodology for estimating the number of H-4 dependent spouses whom 
this rule may impact.
    DHS has carefully considered ways to estimate the volume of 
potential H-4 dependent spouses who will be eligible to apply for 
employment authorization under this rule. Based on comments received 
that questioned whether the estimated volume of such spouses was too 
low, DHS reviewed and updated its estimates in preparing this final 
rule. DHS acknowledges that there is some uncertainty in this analysis, 
but believes its methodology offers the best available estimates.
    Although the estimate of H-4 dependent spouses who could be 
eligible to apply for employment authorization increased in this final 
rule,\27\ the findings and impacts of the rule remain essentially the 
same. In the first year, if all 179,600 H-4 dependent spouses who DHS 
estimates may be eligible under the rule were to enter the U.S. labor 
market, that population would still constitute a small fraction of one 
percent of the overall U.S. civilian workforce. And many of these H-4 
dependent spouses will be able to seek employment even without this 
rule, as immigrant visa numbers become available and H-1B nonimmigrant 
families become eligible to file for adjustment of status. As noted 
previously, this rule simply accelerates the timeframe in which certain 
H-4 dependent spouses are able to enter the labor market.
---------------------------------------------------------------------------

    \27\ Please refer to Section IV.C. of this document for a deeper 
discussion of the final estimate of the impact of this rule.
---------------------------------------------------------------------------

    Notwithstanding the revised volume estimates, the basis for this 
rule, as discussed throughout the proposed rule and this final rule, 
remains accurate. DHS is taking this action to further incentivize H-1B 
nonimmigrants and their families to continue to wait and contribute to 
the United States through an often lengthy waiting period for an 
immigrant visa to become available. DHS expects that these actions will 
also benefit U.S. employers by decreasing the labor disruptions that 
occur when H-1B nonimmigrants abandon the permanent resident process.
3. Comments on Specific Costs and Benefits Discussed in the Analysis
    One commenter believed that the proposed rule overstated the 
potential costs and understated the benefits of the rule. Specifically, 
the commenter alleged that DHS' estimates for cost per applicant were 
exaggerated because DHS included the monetized opportunity costs 
associated with applying for employment authorization. That same 
commenter also believed that DHS failed to stress the economic and 
social benefits of the rule. Another commenter believed that the 
proposed rule failed to acknowledge the economic losses incurred by the 
current inability of H-4 dependent spouses to work.
    DHS has carefully considered these comments and does not believe 
that the potential costs and benefits were either under- or 
overestimated. In the proposed rule, DHS highlighted the economic 
benefits to both the H-4 dependent spouse and the H-1B family unit that 
would accrue from additional income. In addition, in the proposed rule 
DHS discussed the societal integration benefits that would accrue to 
the H-4 dependent spouse and the H-1B family that would come from the 
spouse's ability to participate in the U.S. labor market. DHS disagrees 
with comments that the application costs were inflated because we 
assigned a valuation to the H-4 dependent spouse's time. DHS 
acknowledged in the proposed rule that these spouses do not currently 
work. DHS decided to use the minimum wage as a reasonable proxy to 
estimate the opportunity costs of their time. DHS disagrees with the 
questionable notion that just because these spouses are not currently 
able to participate in the labor market, they do not face opportunity 
costs and/or assign valuation in deciding how to allocate their time. 
As such, DHS utilized a reasonable approach in assigning value to their 
time.

[[Page 10297]]

E. Comments on the Application for Employment Authorization

    Over 180 commenters raised issues related to employment 
authorization, including filing procedures, premium processing, 
validity periods, renewals, evidentiary documentation, concurrent 
filings for extension of stay/change of status, automatic extensions of 
employment authorization, and filing fees. DHS carefully considered 
these comments and addresses them below.
1. Streamlined or Modernized Filing Procedures
    Commenters urged DHS and USCIS to utilize streamlined or modernized 
filing procedures for Applications for Employment Authorization (Forms 
I-765) submitted by H-4 dependent spouses. USCIS is moving from a 
paper-based application and adjudication process to an electronic one 
through the development of an Electronic Immigration System (``USCIS 
ELIS''). When complete, USCIS ELIS will allow customers to 
electronically view their applications, petitions or requests, receive 
electronic notification of decisions, and electronically receive real-
time case status updates. This is a global effort affecting all USCIS 
benefit request programs and, therefore, is outside the scope of this 
rulemaking. DHS will notify the public when USCIS is prepared to begin 
accepting electronic filings of Applications for Employment 
Authorization by eligible H-4 dependent spouses. DHS will begin 
accepting Applications for Employment Authorization (Forms I-765) 
submitted by certain H-4 dependent spouses on the effective date of 
this rule, May 26, 2015. This effective date is intended to prevent an 
overlap of H-1B cap season and an initial filing surge of Forms I-765 
under 8 CFR 274a.12(c)(26). As a result, USCIS will be able to 
implement this program in a manner that will avoid prolonged delays of 
processing other petition and application types, in particular those H-
1B petitions seeking an FY 2016 cap number. It will also allow USCIS to 
maintain excellent customer service for all USCIS stakeholders, 
including H-1B employers, H-1B nonimmigrants and their families.
2. Employment Authorization Document (Form I-766) Validity Period
    Nine commenters requested that DHS issue the Employment 
Authorization Document (EAD) (Form I-766) with a validity period that 
matches the H-4 dependent spouse's status. Related to this request, 
another commenter requested a three-year validity period to match the 
H-1B and H-4 authorized periods of admission. DHS agrees with 
commenters that to reduce possible cases of unauthorized employment, 
the EAD validity period should match the H-4 dependent spouse's length 
of authorized admission. Thus, in issuing an EAD to an otherwise 
eligible H-4 dependent spouse, DHS generally will authorize a validity 
period that matches the H-4 spouse's remaining authorized period of 
admission, which may be as long as three years in cases not involving 
DOD-related services. This policy will ensure that USCIS does not grant 
employment authorization to an H-4 dependent spouse who is not eligible 
for the benefit. It will also likely reduce the number of times that H-
4 dependent spouses may need to request renewal of their employment 
authorization.
    One commenter requested that DHS issue a probationary EAD with a 
six-to twelve-month validity period, at the end of which the H-4 
dependent spouse would have to prove that he or she is working legally 
and paying taxes. DHS declines to adopt this suggestion. The EAD that 
DHS will issue H-4 dependent spouses pursuant to this rule is evidence 
of employment authorization to lawfully work in the United States for 
any employer. DHS is not aware of any risk factors--such as fraud, 
criminal activity, or threats to public safety or national security--
associated with H-4 dependent spouses as a whole that would support 
imposing a six-month validity period. Moreover, the administrative 
burden resulting from additional adjudications and the possibility of 
gaps in employment authorization, together with the burdens this 
limitation would place on the H-4 dependent spouse, make imposing a 
six-month validity period unreasonable.
    Regarding the suggestion that H-4 dependent spouses should be 
required to prove that they pay taxes as a condition of obtaining or 
maintaining work authorization, DHS does not require proof of payment 
of taxes for any of the classes of aliens eligible to file the 
Application for Employment Authorization. As a preliminary matter, 
issuance of an EAD does not require an H-4 dependent spouse to work. 
Nor does issuance of the EAD guarantee that an H-4 dependent spouse 
will find employment and therefore be required to pay taxes on any 
income earned through such employment. Moreover, DHS is not aware of 
any evidence, and the commenter provided none, indicating that H-4 
dependent spouses are likely to engage in tax evasion or other tax-
related unauthorized activity if they are provided employment 
authorization pursuant to this rule. At the same time, USCIS would face 
significant operational burdens if it were required to collect and 
verify tax documents for each H-4 dependent spouse seeking employment 
authorization under this rule.
3. EAD Renewals
    Five commenters requested that DHS allow H-4 dependent spouses to 
apply for EAD renewals up to six months in advance, in part to align 
with the time frame permitted for filing of the Petition for a 
Nonimmigrant Worker (Form I-129) to extend the H-1B nonimmigrant's 
status. As explained below in Section III.E.5, DHS will permit those H-
4 dependent spouses seeking to concurrently file their Form I-765 
application with their Application to Extend/Change Nonimmigrant Status 
(Form I-539), and if applicable their spouses' Form I-129 petition, to 
file up to six months in advance of the requested start date. Please 
note, however, that USCIS will not adjudicate the Form I-765 
application until a determination has been made on the underlying Form 
I-539 application and/or Form I-129 petition. The time at which an H-4 
dependent spouse will be eligible to apply for an EAD renewal will 
vary, as it is dependent on actions taken by the H-1B nonimmigrant, 
including actions to maintain and extend his or her H-1B status, as 
well as the H-4 dependent spouse's status.
4. Acceptable Evidentiary Documentation
    Several commenters submitted comments related to the Application 
for Employment Authorization (Form I-765) and to the evidence required 
to be submitted by applicants with the application. One commenter asked 
DHS to make changes to assist applicants in obtaining acceptable 
evidentiary documentation. This commenter requested that USCIS provide 
the H-4 dependent spouse, upon request, with his or her immigration 
case related paperwork, such as the original underlying petition. 
Another commenter requested that DHS provide clarification about the 
evidentiary standard relating to AC21 eligibility.
    In conjunction with the proposed rule, DHS proposed conforming 
revisions to the Form I-765 application to add H-4 dependent spouses 
described in this rule to the classes of aliens eligible to file the 
form. Concurrent with publication of this final rule, DHS has made 
further changes to the form. DHS has made clarifying changes to improve 
readability of the form instructions describing the types of

[[Page 10298]]

documentary evidence that may be submitted in support of the 
application. As further discussed in Part III.F.1 relating to marriage 
fraud concerns, DHS also has revised the regulatory text in 8 CFR 
214.2(h)(9)(iv) and the form instructions to clarify that supporting 
documentary evidence includes proof of marriage. Finally, DHS has 
revised the form itself to include a check box that self-identifies the 
applicant as an eligible H-4 dependent spouse. DHS believes that adding 
the check box for H-4 dependent spouses to the form will aid in the 
efficient processing of the form by facilitating USCIS's ability to 
match the application with related petitions that are integral to 
determining the H-4 dependent spouse's eligibility for employment 
authorization, as discussed below in Part III.E.5.
    DHS appreciates the concerns regarding the difficulty that some 
applicants may face in obtaining the necessary documentation to support 
the Form I-765 application. DHS's revisions in this final rule to 8 CFR 
214.2(h)(9)(iv) and the instructions to Form I-765 provide for 
flexibility in the types of evidentiary documentation that may be 
submitted by applicants. If the H-4 dependent spouse cannot submit the 
primary evidence listed in the form instructions, he or she may submit 
secondary evidence, such as an attestation that lists information about 
the underlying Form I-129 or Form I-140 petition, so that an 
adjudicator may be able to match the Form I-765 application with the 
underlying petition(s). Such information may include the petition 
receipt number, the beneficiary's name and/or the petitioner's name. If 
secondary evidence does not exist or cannot be obtained, an applicant 
may demonstrate this and submit two or more sworn affidavits by non-
parties who have direct knowledge of the relevant events and 
circumstances. This approach should address the situation where the H-4 
dependent spouse is unable to access the immigration paperwork relating 
to the H-1B nonimmigrant. Notwithstanding the option for submitting 
secondary evidence, if an applicant prefers to obtain the primary 
evidence listed in the form instructions from USCIS for submission with 
the Form I-765, the applicant may make a request for documents 
maintained by USCIS by following established procedures for making such 
requests under the Freedom of Information Act (FOIA). See http://www.uscis.gov/about-us/freedom-information-and-privacy-act-foia/how-file-foia-privacy-act-request/how-file-foiapa-request. DHS declines to 
establish new procedures for making document requests that are 
applicable only to applicants who are H-4 dependent spouses. The 
established FOIA process for making document requests promotes 
fairness, uniformity, and administrative efficiency, while ensuring 
that privacy protections are enforced.
    Finally, in response to the comment on the evidentiary standard 
that will apply to H-4 dependent spouses, DHS notes that such spouses 
will have to meet the same burden of proof (i.e., preponderance of the 
evidence) as other applicants for employment authorization. See, e.g. , 
Matter of Chawathe, 25 I. & N. Dec. 369, 376 (AAO 2010) (describing 
``preponderance of the evidence'' standard).
5. Concurrent Filings
    A couple of commenters requested that DHS allow eligible H-4 
dependent spouses to file the Application for Employment Authorization 
(Form I-765) concurrently with an Immigrant Petition for Alien Worker 
(Form I-140) or an Application to Extend/Change Nonimmigrant Status 
(Form I-539). For the reasons that follow, DHS agrees to allow Form I-
765 to be concurrently filed with Form I-539, but not with Form I-140.
    DHS currently permits an H-4 dependent spouse to file Form I-539 
concurrently with a Petition for a Nonimmigrant Worker (Form I-129) 
filed on behalf of the H-1B nonimmigrant. This provides several 
efficiencies, as the status of the H-4 dependent spouse is based on the 
resolution of the H-1B nonimmigrant's Form I-129 petition and both 
forms may be processed at the same USCIS locations. For similar 
reasons, DHS has decided to permit H-4 dependent spouses to file 
Applications for Employment Authorization (Forms I-765) concurrently 
with certain related benefit requests: Applications to Extend/Change 
Nonimmigrant Status (Forms I-539) and, if applicable, with Petitions 
for a Nonimmigrant Worker (Form I-129). As noted previously, DHS has 
decided to issue EADs to eligible H-4 dependent spouses with validity 
dates that match their authorized periods of admission. That period of 
admission is determined as part of the Form I-539 application 
adjudication, which, in turn, is largely dependent on the H-1B 
nonimmigrant's period of admission determined as part of the Form I-129 
adjudication. Because adjudication of those forms are interrelated, and 
because they are submitted to the same USCIS locations, DHS has 
determined that it is reasonable to allow those forms to be 
concurrently filed.
    DHS, however, cannot extend the courtesy of concurrent filing with 
Form I-140 immigrant visa petitions filed on behalf of the H-1B 
nonimmigrant. Presently, Forms I-129 and I-539 are not processed at the 
same USCIS locations in which Form I-140 petitions are adjudicated. As 
a result, each form must be filed separately at the USCIS Service 
Center location having jurisdiction over the relevant form. 
Additionally, determining the spousal relationship between the H-1B 
nonimmigrant and the H-4 dependent spouse is not a necessary part of 
the adjudication of the Form I-140 petition.\28\ To permit concurrent 
filing of Form I-765 with Form I-140 would undermine DHS' efforts to 
facilitate efficient processing of both benefit requests.
---------------------------------------------------------------------------

    \28\ Unlike the I-140 adjudication, adjudication of Form I-539 
requires evidence of such spousal relationship.
---------------------------------------------------------------------------

    DHS also notes that it cannot adjudicate a Form I-765 filed by an 
H-4 dependent spouse until the Department has made a determination 
regarding the H-1B nonimmigrant's eligibility for H-1B status under 
sections 106(a) and (b) of AC21 or until a Form I-140 petition has been 
approved. Prior to adjudicating such Form I-765, DHS must also make a 
determination that the H-4 dependent spouse remains eligible for H-4 
status. As such, DHS amends the current rule to clarify that the 90-day 
clock specified in 8 CFR 274a.13(d) authorizing DHS to issue interim 
employment authorization if the Form I-765 is not adjudicated within 90 
days is not triggered until necessary eligibility determinations have 
been made on the underlying nonimmigrant status for the H-1B 
nonimmigrant and the H-4 dependent spouse. If the H-4 dependent 
spouse's employment authorization is based on a favorable eligibility 
determination relating to the nonimmigrant status of either the H-1B 
nonimmigrant or the H-4 dependent spouse, the 90-day clock is triggered 
when that eligibility determination is made. Alternatively, if 
employment authorization is based on a favorable eligibility 
determination relating to the nonimmigrant status of both the H-1B 
nonimmigrant and the H-4 dependent spouse, the 90-day clock is not 
triggered until an eligibility determination is made on both. 
Accordingly, DHS is making conforming amendments to 8 CFR 
214.2(h)(9)(iv) and 8 CFR 274a.13(d) in this final rule and the 
instructions to Form I-765. These amendments permit H-4

[[Page 10299]]

dependent spouses under this rule to concurrently file their Form I-765 
with related benefit requests, specified in the form instructions to 
include their Application to Extend/Change Nonimmigrant Status (Form I-
539), and if applicable, their spouse's Form I-129 petition. As a 
result of the amendments, the 90-day clock described in 8 CFR 
274a.13(d) would also not start until after a determination has been 
made on the underlying H-1B status, H-4 status, or both.
6. Premium Processing
    Three commenters requested premium processing service for H-4 
dependent spouses seeking to file Applications for Employment 
Authorization (Forms I-765). These commenters highlighted the benefit 
that the extra premium processing fees could bring to USCIS. DHS 
appreciates these comments, but has decided not to extend premium 
processing to Form I-765 applications filed by H-4 dependent spouses in 
conjunction with this rulemaking. DHS currently offers premium 
processing service for certain employment-based petitions and 
applications, including H-1B, L, and E nonimmigrant worker petitions 
and certain EB-1, EB-2 and EB-3 immigrant visa petitions. Extending 
premium processing to Form I-765 applications, however, presents 
operational concerns and would be inconsistent with procedural 
realities for USCIS. The agency, for example, would be unable to comply 
with premium processing requirements on any Form I-765 application that 
is contingent on the adjudication of a concurrently filed Application 
to Extend/Change Nonimmigrant Status (Form I-539). Due to these and 
other operational concerns, DHS will not extend premium processing 
service to Form I-765 applications, including applications filed by H-4 
dependent spouses under this rule at this time.
7. Automatic Extensions of Work Authorization
    One commenter requested an automatic extension of work 
authorization for 240 days after an H-4 dependent spouse's EAD expires. 
DHS, however, is concerned with improperly granting employment 
authorization to an H-4 dependent spouse who is ineligible for it. As 
the validity of the H-4 dependent spouse's eligibility for employment 
authorization will be tied to his or her authorized period of 
admission, automatic extensions of employment authorization without 
review of the underlying extension of stay applications for the H-1B 
nonimmigrant and H-4 dependent spouse could result in employment 
authorization being extended to individuals who will eventually be 
determined ineligible for this benefit. DHS thus declines to adopt this 
recommendation.
    To avoid any potential gaps in employment authorization when 
seeking an extension of employment authorization, DHS recommends that 
the H-4 dependent spouse timely file all necessary applications. DHS's 
policy to permit concurrent filing of Forms I-539, I-129, and I-765 
should also help H-4 dependent spouses avoid gaps in employment 
authorization, as these forms may be filed concurrently up to six 
months in advance of date of need.
8. Filing Fees
    Several commenters submitted remarks on the filing fees without 
expressing support for or opposition to the fees. Additionally, some 
commenters asserted that USCIS would benefit from an increased volume 
of fees, and another commenter requested that the U.S. Government help 
pay for immigration-related application fees.
    DHS is bound by statutes and regulations governing its collection 
of fees in connection with immigration benefit requests. See INA 
section 286(m)-(p), 8 U.S.C. 1356(m)-(p); 8 CFR 103.7. DHS generally 
must set application fees at a level that enables it to recover the 
full costs of providing services, including the costs of similar 
services provided without charge to certain other applicants. But DHS 
may offer assistance with respect to immigration-related application 
fees in the form of fee waivers. Discretionary fee waivers are provided 
on a case-by-case basis when the party requesting the benefit is unable 
to pay the prescribed fee and the waiver request is consistent with the 
underlying benefit being requested. See 8 CFR 103.7(c)(1).
    For the reasons that follow, DHS believes that it would be unlikely 
that H-4 dependent spouses would be unable to pay the prescribed fee 
for the Application for Employment Authorization (Form I-765). By 
definition, H-4 dependent spouses are married to H-1B nonimmigrants who 
are employed and earning a salary of at least the prevailing wage in 
their occupation. H-4 dependent spouses will thus generally be unable 
to establish that they cannot pay the fee prescribed for the Form I-765 
application. For these reasons, DHS declines to establish a general fee 
waiver for the Form I-765 filed by eligible H-4 dependent spouses under 
this rule. See 8 CFR 103.7(d). USCIS will consider fee waiver requests 
on a case-by-case basis. See 8 CFR 103.7(c)(3)(viii). As noted above, 
given the nature of the H-1B nonimmigrant's employment, a showing of 
inability to pay as required by the regulation would be the exception 
rather than the rule.
9. Possible Restrictions on EADs Issued to H-4 Dependent Spouses
    A few commenters recommended imposing certain restrictions on 
employment authorization issued to H-4 dependent spouses, such as: 
Creating a cap on the number of EADs that could be granted to H-4 
dependent spouses; prohibiting the H-1B nonimmigrant and H-4 dependent 
spouse from having the same employer or working in the same occupation; 
prohibiting employers from replacing an American veteran with an H-1B 
nonimmigrant; restricting H-4 work authorization to certain employers; 
creating a National Registry of Jobs that H-4 dependent spouses would 
be allowed to apply for; forcing individuals to surrender their foreign 
passports when they obtain U.S. citizenship as a way of proving 
allegiance; allocating EADs in a proportionate manner based on 
nationality; and requiring H-4 dependent spouses to pay for training 
programs for U.S. citizens.
    DHS declines to incorporate the suggested restrictions into this 
final rule. A primary purpose of this rule is to assist U.S. employers 
in retaining certain highly skilled H-1B nonimmigrants. Allowing 
certain H-4 dependent spouses to apply for employment authorization 
removes a disincentive that currently undermines this goal. Imposing 
the suggested restrictions, such as numerical caps or per-country 
quotas, would limit the effectiveness and purpose of this rule. 
Additionally, DHS believes that EADs provide inherent protections that 
mitigate the risk of abuse and exploitation. Because these EADs may be 
used to work for any employer, workers are free to find new employment 
at any point during the EAD's validity, including if they are 
dissatisfied with their pay or working conditions. Finally, DHS 
reiterates that the individuals being provided employment authorization 
under this rule belong to a class of aliens that is already likely to 
enter the U.S. labor market with EADs. In sum, DHS does not believe 
that extending eligibility for employment authorization to H-4 
dependent spouses will lead to the broad exploitation of EADs.

[[Page 10300]]

10. Circular EADs
    One commenter noted that this rule could lead to ``circular EADs,'' 
whereby spouses who are both eligible for H-1B status may switch status 
(H-1B to H-4 and vice versa) so that one spouse may maintain an EAD at 
all times. This commenter conveyed the concern that H-1B nonimmigrants 
might initiate the primary steps towards permanent residence, then 
switch back and forth between H-1B and H-4 statuses to stay in the 
United States forever.
    DHS acknowledges that H-1B nonimmigrants will be able to change 
status, as permitted by law. DHS believes it is extremely unlikely, 
however, that an H-1B nonimmigrant will seek to remain in the United 
States forever by switching between nonimmigrant statuses as a result 
of this rule. The rule is intended to benefit those H-1B nonimmigrants 
who are already well on the path to lawful permanent residence and, 
therefore, seek to remain in the United States permanently on this 
basis. Although the waiting period for an immigrant visa may be 
lengthy, there is an end date as indicated on the Department of State's 
Visa Bulletin. So any incentive to switch between statuses indefinitely 
would be weighed by the nonimmigrant against the benefits of obtaining 
LPR status, including the ability to work in the United States without 
being tied to a specific employer and the ability of the H-4 dependent 
spouse to work without needing to periodically apply and pay for an 
EAD. Moreover, with lawful permanent residency, an individual is 
eligible to apply for U.S. citizenship, generally after five years, and 
to petition for relatives to immigrate to the United States, benefits 
that are not available to persons with H-1B or H-4 status.
11. Form I-765 Worksheets
    One commenter expressed concern that H-4 dependent spouses would 
need to demonstrate economic need for employment because of the 
reference in the Paperwork Reduction Act section of the proposed rule 
to the Form I-765 Worksheet (Form I-765WS). DHS is clarifying that H-4 
dependent spouses are not required to establish economic need for 
employment authorization. H-4 dependent spouses are not required to 
submit Form I-765WS with their Application for Employment Authorization 
(Form I-765). DHS has corrected this error in the form instructions to 
the Application for Employment Authorization (Form I-765).
12. Other Related Issues
    Several commenters sought guidance on issues tangential to the 
issuance of employment authorization to H-4 dependent spouses. For 
example, one commenter asked for clarification on the type of status 
that an H-4 dependent spouse will receive when readmitted into the 
United States after traveling abroad. Another commenter wanted to know 
if an H-4 dependent spouse could work from home in the United States 
for his or her native country employer on the native country salary. 
Because this rulemaking is limited to extending eligibility for 
employment authorization to H-4 dependent spouses and does not make 
changes to admission requirements or conditions of employment 
authorization, DHS considers these questions outside the scope of this 
rulemaking. Please consult the USCIS Web site at www.uscis.gov or 
contact USCIS Customer Service at 1-800-375-5283 for current guidance.
    Finally, several commenters requested clarification about EAD 
processing and adjudication times. USCIS posts current processing times 
on its Web site and encourages interested stakeholders to consult 
www.uscis.gov if they have questions about adjudication times.\29\
---------------------------------------------------------------------------

    \29\ For example, as of January 26, 2015, the processing time at 
the California Service Center (CSC) for the Application for 
Employment Authorization, Form I-765, ranged from 3 weeks to 3 
months depending on the basis for the Form I-765. See https://dashboard.uscis.gov/index.cfm?formtype=12&office=2&charttype=1.
---------------------------------------------------------------------------

F. Fraud and Public Safety Concerns

    Over 100 commenters raised concerns related to fraud and public 
safety, including issues related to resume fraud, marriage fraud, 
participation by individuals with criminal records, unauthorized 
employment, and employer abuse in the H-1B program. Strict consequences 
are already in place for immigration-related fraud and criminal 
activities, including inadmissibility to the United States, mandatory 
detention, ineligibility for naturalization, and removability. See, 
e.g., INA sections 101(f), 212(a)(2) & (a)(6), 236(c), 237(a)(1)(G) & 
(a)(2), 318; 8 U.S.C. 1101(f), 1182(a)(2) & (a)(6), 1226(c), 
1227(a)(1)(G) & (a)(2), 1429. Nevertheless, the Department welcomes 
suggestions to further prevent fraud and protect public safety in the 
implementation of its programs. The Department carefully considered 
these comments and addresses them below.
1. Falsifying Credentials and Marriage Fraud
    Over 100 commenters anticipated that certain H-4 dependent spouses 
would falsify their resumes or qualifications or marry for immigration 
purposes. With respect to potential resume fraud, DHS notes that 
eligibility for employment authorization for H-4 dependent spouses will 
not depend in any way on their professional or educational 
qualifications or their resumes. It will be up to potential employers 
to verify the qualifications of H-4 dependent spouses they may be 
seeking to hire. This concern is therefore outside the scope of this 
rulemaking.
    With respect to marriage fraud, DHS is revising 8 CFR 
214.2(h)(9)(iv) to clarify that establishing eligibility for employment 
authorization under this rule requires evidence of the spousal 
relationship between the H-4 dependent spouse and the H-1B 
nonimmigrant. DHS is also making conforming revisions to the form 
instructions to Form I-765 to require that H-4 dependent spouses submit 
proof of marriage to the H-1B nonimmigrant with the form. USCIS 
officers are specially trained to recognize indicia of fraud, including 
marriage fraud and falsified documents, and review other immigration 
petitions for these circumstances as well. If such fraud is suspected, 
the relevant USCIS officer may refer the case to the local fraud unit 
for further inquiry. USCIS may also submit leads related to significant 
fraud to U.S. Immigration and Customs Enforcement for criminal 
investigation. DHS believes that current fraud-detection training, 
mechanisms for detecting and investigating fraud, and fraud-related 
penalties are sufficient for deterring and detecting marriage fraud in 
this context.
2. Prohibition Related to Felony Charges and Convictions
    Two commenters requested a prohibition against participation by 
anyone charged with, awaiting trial for, or convicted of a felony. DHS 
appreciates the commenters' concerns over public safety and notes that 
the eligibility for employment authorization extended by this rule to 
certain H-4 dependent spouses is discretionary. DHS officers will 
consider any adverse information--including criminal convictions, 
charges, and other criminal matters--on a case-by-case basis.
3. Unauthorized Employment
    A few commenters thought that this rule would help curb any 
unauthorized employment in which H-4 dependent spouses are currently 
engaging. Additionally, several commenters raised concerns that this 
rule could encourage illegal immigration and increase the number of 
undocumented workers in

[[Page 10301]]

the United States. DHS disagrees that this rule may encourage illegal 
immigration. DHS believes that this rule will provide options to 
certain H-4 dependent spouses allowing them to engage in authorized 
employment. Individuals eligible for employment authorization under 
this rule must have been granted H-4 status and must remain in such 
lawful status before they can be granted employment authorization 
pursuant to this rule. An H-4 dependent spouse who engaged in 
unauthorized employment would not have been maintaining lawful H-4 
status and therefore would be ineligible for this new benefit. 
Therefore, the Department does not believe that this rule will 
incentivize unauthorized employment or any other illegal activities.
4. Employer Abuse of H-1B Nonimmigrants and H-4 Dependent Spouses
    A number of commenters raised concerns over potential employer 
abuse of H-1B nonimmigrants and H-4 dependent spouses. These concerns 
included failure to pay prevailing wages and demanding long hours 
without adequate compensation. DHS appreciates these concerns and 
maintains that employers must not intimidate, threaten, restrain, 
coerce, blacklist, discharge or otherwise discriminate or take unlawful 
action against any employee. Violators face severe penalties. See INA 
212(n)(2)(C)(iv), 8 U.S.C. 1182(n)(2)(C)(iv). DHS takes seriously any 
potential abuse of H-1B nonimmigrants and H-4 dependent spouses and 
encourages any workers who feel that their rights have been violated by 
their employers to file a complaint with DOL or another appropriate 
entity, such as the Equal Employment Opportunity Commission.\30\ Any 
concerns raised by commenters regarding H-1B nonimmigrants and worker 
protections in the H-1B program, however, are outside the scope of this 
rulemaking.
---------------------------------------------------------------------------

    \30\ An individual can submit a Nonimmigrant Worker Information 
Form, Form WH-4, with DOL. This form was authorized by the American 
Competitiveness and Workforce Improvement Act (ACWIA) of 1998. See 
INA sections 212(n)(2)(G), 8 U.S.C. 1182(n)(2)(G). It is available 
on-line at http://www.dol.gov/whd/forms/wh-4.pdf.
---------------------------------------------------------------------------

G. General Comments

    Over 300 commenters submitted feedback about general immigration 
issues. A few commenters expressed support for or opposition to 
immigration. Comments ranged from requesting DHS to discontinue all 
types of immigration to underscoring the need for comprehensive reform 
of the immigration laws to general support of immigration. DHS is 
charged with administering the immigration laws enacted by Congress, 
and only Congress can change those laws. The comments described above 
are therefore outside the scope of this rulemaking. DHS, however, is 
committed to comprehensive immigration reform that creates a workable 
system that strengthens border security, improves the U.S. economy, 
unites families, and preserves national security and public safety.
    Additionally, fewer than a dozen commenters objected to the ability 
of non-U.S. citizens to submit comments on the proposed rule. As noted 
in that rule, DHS welcomed comments from all interested parties and did 
not place any restrictions based on citizenship or nationality.

H. Modifications to the H-1B Program and Immigrant Visa Processing

1. H-1B Visa Program
i. Circumventing the H-1B Cap
    A few commenters suggested that employers may try to exploit this 
regulation by using it to avoid the H-1B numerical cap and hiring more 
foreign specialty occupation workers than permitted by the statute. As 
a preliminary matter, DHS cannot agree with the premise that hiring an 
individual with general (rather than employer-specific) employment 
authorization constitutes circumvention of the cap on H-1B 
nonimmigrants. This is particularly so when such employment 
authorization is contingent on being married to an individual who was 
selected in the H-1B program and is subject to the cap. Moreover, 
commenters provided no evidence or data that would support the 
contention that this rule will be used by employers and H-4 dependent 
spouses to circumvent the cap. For example, DHS does not have, and 
commenters did not provide, data on the skillsets or educational levels 
of H-4 dependent spouses to indicate that they will generally qualify 
for jobs that are typically held by highly skilled H-1B nonimmigrants. 
Finally, it is unlikely that highly skilled individuals who could 
independently qualify under the H-1B program will instead opt to enter 
the United States as H-4 dependent spouses and subject themselves to 
lengthy periods of unemployment with the intent to circumvent the H-1B 
cap. As noted previously, this rule provides eligibility for employment 
authorization only to those H-4 dependent spouses who are married to 
certain H-1B nonimmigrants who have taken substantial steps, generally 
taking many years, towards obtaining permanent residence. Such an 
individual may eventually obtain a job for which an H-1B nonimmigrant 
could possibly have qualified, but the Department does not consider 
this a circumvention of the H-1B cap.
ii. Elimination or Modification of the H-1B program
    More than a dozen commenters requested that the H-1B program be 
terminated. An approximately equal number of commenters requested that 
the H-1B visa cap be eliminated or modified in various ways. Several 
commenters requested that DHS increase the number of visas available, 
other commenters asked DHS to eliminate the H-1B visa cap, while others 
recommended decreasing the number of visas available.
    DHS cannot address the commenters' suggestions in this rulemaking. 
The H-1B program is required by statute, which also sets the current 
cap on H-1B visa numbers. Congressional action is thus required to 
address the commenters' concerns, as the Secretary does not have the 
authority to eliminate the program or change the visa cap without 
congressional action. The suggested changes are thus outside the scope 
of this rulemaking.
    Additionally, one commenter requested that DHS allow for more 
flexible filing times for H-1B visas. This request would require DHS to 
amend its H-1B regulations, which currently provide that an H-1B 
petition may not be filed or approved earlier than six months before 
the date of actual need for the beneficiary's services. See 8 CFR 
214.2(h)(9)(i)(B). This rulemaking, however, does not make substantive 
changes to the H-1B program or its regulations. The request is thus 
outside the scope of this rulemaking.
iii. More Flexible Change of Status From H-1B to H-4
    One commenter requested a modification of the H-1B program to allow 
a family member who has been in the United States for more than five 
years to choose between H-1B and H-4 status. To some extent, H-1B 
nonimmigrants currently have this option. An H-4 dependent spouse may 
seek classification as an H-1B nonimmigrant if an employer files a 
petition on his or her behalf. As long as one of the spouses maintains 
H-1B status, the other is eligible for H-4 status. However, the 
underlying H-1B status is connected to the need of a U.S.

[[Page 10302]]

employer. To the extent that the commenter is suggesting a change to 
this requirement such that both spouses could be present in the United 
States in H-4 status, such a change would require congressional action 
and, therefore, is beyond the scope of this rulemaking.
iv. Applying for H-1B Status and Cap Exemption
    One commenter recommended that H-4 dependent spouses be allowed to 
apply for H-1B visas and be exempt from the cap. This final rule does 
not prohibit H-4 dependent spouses from seeking and obtaining H-1B 
status. Once an H-4 spouse seeks to change to H-1B status, he or she is 
subject to annual limitations on H-1B nonimmigrants. Only Congress can 
exempt groups of individuals from the statutory H-1B numerical 
limitations. This request is therefore beyond the scope of this 
rulemaking.
v. Dependents of G Principal Nonimmigrants
    One commenter requested that DHS change its G visa regulations to 
allow dependents of principal G visa holders to more freely obtain a 
different visa classification (such as H-1B classification). Such a 
change is outside the scope of this rulemaking.
2. Immigrant Visa Processing and Adjustment of Status
    Over 30 commenters requested the elimination of the worldwide 
quotas for immigrant visas.\31\ One commenter requested allowing the 
submission and receipt of applications for adjustment of status when 
visas are not available, and another requested that the rule include 
provisions to expedite the permanent residence process for the EB-2 and 
EB-3 preference categories. Several commenters requested that USCIS 
grant EADs to LPR applicants while they wait for their immigrant visas. 
Another commenter requested that USCIS grant one skilled worker visa 
per eligible family unit (rather than per each individual family 
member), for the purpose of reducing backlogs. One commenter requested 
that USCIS establish a procedure by which those in the process of 
seeking LPR status could ``pre-register'' their intention to apply to 
adjust status.
---------------------------------------------------------------------------

    \31\ Section 201(d) of the INA, 8 U.S.C. 1151(d), prescribes the 
worldwide level of employment-based immigrants. Section 203(b) of 
the INA, 8 U.S.C. 1153(b), prescribes the preference allocation for 
employment-based immigrants. Section 202 of the INA, 8 U.S.C. 1152, 
prescribes per country levels for family-sponsored and employment-
based immigrants.
---------------------------------------------------------------------------

    DHS appreciates feedback from the public regarding possible changes 
to the immigration laws and the system for obtaining LPR status. DHS, 
however, will not respond to these comments as they do not address 
changes to the regulations made by this rulemaking and are therefore 
outside the scope of this rulemaking.

I. H-1B Nonimmigrant's Maintenance of Status

    Several commenters asked for more information about the effect that 
an H-1B nonimmigrant's loss of employment or change of employer would 
have on the H-4 dependent spouse's employment authorization. As stated 
in the proposed rule, the H-4 dependent's status is tied to the H-1B 
nonimmigrant's status. Thus, if the H-1B nonimmigrant fails to maintain 
status, the H-4 dependent spouse also fails to maintain status and 
would therefore no longer be eligible for employment authorization. 
Under current regulations, DHS may seek to revoke employment 
authorization if, prior to the expiration date of such authorization, 
any condition upon which it was granted has not been met or no longer 
exists. See 8 CFR 274a.14(b).

J. Environmental Issues

    In the proposed rule, DHS requested comments relating to the 
environmental effects that might arise from the proposed rule. Nine 
commenters submitted related feedback, noting general environmental 
issues that come with an increased population. DHS appreciates these 
comments but notes that the vast majority of the population immediately 
affected by the rule is already in the United States and has been here 
for a number of years while waiting for their immigrant visas. The H-4 
dependent spouses affected by this rule generally will eventually be 
able to seek employment even without this rule, as immigrant visa 
numbers become available and H-1B nonimmigrant families become eligible 
to file for adjustment of status. As noted previously, this rule simply 
accelerates the timeframe in which these individuals are able to enter 
the labor market.

K. Reporting

    A few commenters requested more information about how DHS will 
monitor the outcome of the final rule, such as by tracking EAD 
adjudications for H-4 dependent spouses and publishing annual reports. 
DHS maintains statistics on all immigration benefit programs and will 
monitor H-4 EAD adjudications and include relevant information in its 
annual reports in accordance with current reporting protocols.

L. Implementation

    Several hundred commenters requested that the rule be implemented 
as soon as possible. One commenter requested that a sunset provision be 
included in the rule. At the end of the sunset period, the commenter 
recommended that DHS evaluate the program, and, if the results are 
positive, expand it. DHS believes that a general sunset provision would 
not be practicable or fair as it would require DHS to provide different 
periods of employment authorization to H-4 dependent spouses depending 
on when they become eligible to apply. Further, DHS considers a sunset 
provision to be at odds with the rule's purpose, which is to retain 
highly skilled workers who often have a multi-year wait before being 
eligible to apply for permanent residence.
    With respect to implementation of this rule, DHS must consider the 
30-day effective date requirement at 5 U.S.C. 553(d) as well as USCIS's 
implementation requirements. Based on these factors, DHS has decided 
that this rule will be effective 90 days from the date of publication, 
May 26, 2015.

IV. Statutory and Regulatory Requirements

A. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. The value 
equivalent of $100,000,000 in 1995 adjusted for inflation to 2014 
levels by the Consumer Price Index for All Urban Consumers is 
$155,000,000.
    This rule does not exceed the $100 million expenditure in any one 
year when adjusted for inflation ($155,000,000 in 2014 dollars), and 
this rulemaking does not contain such a mandate. The requirements of 
Title II of the Act, therefore, do not apply, and DHS has not prepared 
a statement under the Act.

[[Page 10303]]

B. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more, a 
major increase in costs or prices, or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States companies to compete with foreign-based 
companies in domestic and export markets.

C. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, the 
rule has been reviewed by the Office of Management and Budget.
    DHS is amending its regulations to extend eligibility for 
employment authorization to certain H-4 dependent spouses of H-1B 
nonimmigrants who either: (1) Are principal beneficiaries of an 
approved Immigrant Petition for Alien Worker (Form I-140); or (2) have 
been granted H-1B status under sections 106(a) and (b) of AC21.
1. Summary
    Currently, USCIS does not issue work authorization to H-4 dependent 
spouses. To obtain work authorization, the H-4 dependent spouse 
generally must have a pending Application to Register Permanent 
Resident Status or Adjust Status or have changed status to another 
nonimmigrant classification that permits employment. AC21 provides for 
an authorized period of admission and employment authorization beyond 
the typical six-year limit for H-1B nonimmigrants who are seeking 
permanent residence. This final rule will extend eligibility for 
employment authorization to H-4 dependent spouses where: the H-1B 
nonimmigrant is the principal beneficiary of an approved Form I-140 
petition; or the H-1B nonimmigrant has been granted status pursuant to 
sections 106(a) and (b) of AC21.
    DHS has updated its estimate of the population of H-4 dependent 
spouses who will be impacted by the rule. DHS estimates the current 
population of H-4 dependent spouses who will be eligible for employment 
authorization could initially be as many as 179,600 after taking into 
account the backlog of H-1B nonimmigrants who have approved I-140 
petitions, or who are likely to have such petitions approved, but who 
are unable to adjust status because of the lack of immigrant visas. For 
ease of analysis, DHS has assumed that those H-4 dependent spouses in 
the backlog population will file for employment authorization in the 
first year of implementation. DHS estimates the flow of new H-4 
dependent spouses who could be eligible to apply for initial employment 
authorization in subsequent years may be as many as 55,000 annually. 
Even with the increased estimate of H-4 dependent spouses who could be 
eligible to apply for employment authorization, DHS still affirms in 
the initial year (the year with the largest number of eligible 
applicants) that the rule will result in much less than a one percent 
change in the overall U.S. labor force.
    DHS is unable to determine and does not include in this analysis 
the filing volume of H-4 dependent spouses who will need to renew their 
employment authorization documents under this rule as they continue to 
wait for immigrant visas. Eligible H-4 dependent spouses who wish to 
apply for employment authorization must pay the $380 filing fee to 
USCIS, provide two passport-style photos, and incur the estimated 3-
hour-and-25-minute opportunity cost of time burden associated with 
filing an Application for Employment Authorization (Form I-765). After 
monetizing the expected opportunity cost and combining it with the 
filing fee \32\ and the estimated cost associated with providing two 
passport-style photos, an eligible H-4 dependent spouse applying for 
employment authorization will face an anticipated total cost of 
$436.18.
---------------------------------------------------------------------------

    \32\ The filing fee is assumed to be a reasonable approximation 
for USCIS's costs of processing the application. See INA section 
286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------

    The maximum anticipated annual cost to eligible H-4 dependent 
spouses applying for initial employment authorization in Year 1 is 
estimated at $78,337,928 (non-discounted), and $23,989,900 (non-
discounted) in subsequent years. The 10-year discounted cost of this 
rule to eligible H-4 dependent spouses applying for employment 
authorization is $257,403,789 at 3 percent and $219,287,568 at 7 
percent. Table 2 shows the maximum anticipated estimated costs over a 
10-year period of analysis for the estimate of 179,600 applicants for 
initial employment authorization, and the 55,000 applicants expected to 
file for initial employment authorization annually in subsequent years.

  Table 2--Total Costs and Benefits of Initial Employment Authorization for Certain H-4 Dependent Spouses 10-Yr
                                      Present Value Estimates at 3% and 7%
                                                   [$Millions]
----------------------------------------------------------------------------------------------------------------
                                                                           Sum of Years 2-10  Total over 10-year
                                                        Year 1 estimate     (55,000 filers    period of analysis
                                                       (179,600 filers)        annually)               *
----------------------------------------------------------------------------------------------------------------
3% Discount Rate:
    Total Costs Incurred by Filers @3%..............               $76.1              $181.3              $257.4
7% Discount Rate
    Total Costs Incurred by Filers @7%..............                73.2               146.1               219.3
                                                     -----------------------------------------------------------

[[Page 10304]]

 
Qualitative Benefits................................  This rule is intended to remove a disincentive to pursuing
                                                      LPR status due to the potentially long wait for employment-
                                                      based immigrant visas for many H-1B nonimmigrants and
                                                      their family members. This rule will encourage H-1B
                                                      nonimmigrants who have already taken steps to become LPRs
                                                      to not abandon their efforts because their H-4 dependent
                                                      spouses are unable to work. By encouraging H-1B
                                                      nonimmigrants to continue in their pursuit of becoming
                                                      LPRs, this rule would minimize disruptions to petitioning
                                                      U.S. employers. Additionally eligible H-4 dependent
                                                      spouses who participate in the labor market will benefit
                                                      financially. DHS also anticipates that the socioeconomic
                                                      benefits associated with permitting H-4 spouses to
                                                      participate in the labor market will assist H-1B families
                                                      in integrating into the U.S. community and economy.
----------------------------------------------------------------------------------------------------------------
* Note: Totals may not sum due to rounding.

2. Purpose of the Rule
    According to the most recently released reports prepared by the DHS 
Office of Immigration Statistics, in Fiscal Year (FY) 2013 a total of 
990,553 persons became LPRs of the United States.\33\ Most new LPRs (54 
percent) were already living in the United States and obtained their 
LPR status by applying for adjustment of status within the United 
States.
---------------------------------------------------------------------------

    \33\ See DHS Office of Immigration Statistics, Annual Flow 
Report, U.S. Lawful Permanent Residents: 2013 (May 2014), available 
at http://www.dhs.gov/sites/default/files/publications/ois_lpr_fr_2013.pdf.
---------------------------------------------------------------------------

    Employment-based immigrant visas accounted for approximately 16 
percent of the total number of persons obtaining LPR status, and 30 
percent of total LPRs who adjusted status in FY 2013. In FY 2013, there 
were a total of 161,110 LPRs admitted under employment-based preference 
visa categories. Of these 161,110 individuals, ``priority workers'' 
(first preference or EB-1) accounted for 24 percent; ``professionals 
with advanced degrees'' (second preference or EB-2) accounted for 39 
percent; and ``skilled workers, professionals, and other workers'' 
(third preference or EB-3) accounted for 27 percent.\34\
---------------------------------------------------------------------------

    \34\ Id.
---------------------------------------------------------------------------

    Based on historical trends, H-1B nonimmigrants seeking to adjust 
status to lawful permanent residence will most likely adjust under the 
EB-2 and EB-3 preference categories, with a much smaller amount 
qualifying under the EB-1 preference category. As of January 2015, the 
employment-based preference categories are ``current'' and have visas 
available, except for Chinese and Indian nationals seeking admission 
under the second preference category and individuals of all 
nationalities seeking admission under the third preference 
category.\35\ Thus, the employment-based categories under which H-1B 
nonimmigrants typically qualify to pursue LPR status are the very 
categories that are currently oversubscribed.\36\
---------------------------------------------------------------------------

    \35\ See Department of State Bureau of Consular Affairs, 
December 2014 Visa Bulletin (Nov. 7, 2014), available at http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_January2015.pdf.
    \36\ See Wadhwa, Vivek, et al., Intellectual Property, the 
Immigration Backlog, and a Reverse Brain-Drain--America's New 
Immigrant Entrepreneurs, Part III, Center for Globalization, 
Governance & Competitiveness (Aug. 2007), available at http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf. Note: The report examined the 2003 cohort of employment-based 
immigrants and showed that 36.8 percent of H-1B nonimmigrants that 
adjust status do so through the EB-3 category and another 28 percent 
do so through the EB-2 category, while only 4.62 percent adjust 
through the EB-1 category.
---------------------------------------------------------------------------

    In many cases, the timeframe associated with seeking lawful 
permanent residence is lengthy, extending well beyond the six-year 
period of stay allotted by the H-1B nonimmigrant visa classification. 
As a result, retention of highly educated and highly skilled 
nonimmigrant workers can become challenging for U.S. employers. 
Retaining highly skilled persons who intend to acquire LPR status is 
important when considering the contributions they make to the U.S. 
economy, including advances in research and development and other 
entrepreneurial endeavors, which are highly correlated with overall 
economic growth and job creation. By some estimates, immigration was 
responsible for one quarter of the explosive growth in patenting in 
past decades, and these innovations have the potential to contribute to 
increasing U.S. gross domestic product (GDP).\37\ In addition, over 25 
percent of tech companies founded in the United States from 1995 to 
2005 had a key leader who was foreign-born.\38\ Likewise, the Kauffman 
Foundation reported that immigrants were more than twice as likely to 
start a business in the United States as the native-born in 2012, and a 
report by the Partnership for a New American Economy found that more 
than 40 percent of Fortune 500 companies in 2010 were founded by 
immigrants or their children.\39\ Additionally, in March 2013, the 
House Committee on the

[[Page 10305]]

Judiciary held a hearing on Enhancing American Competitiveness Through 
Skilled Immigration, providing some members of the business community 
with an opportunity to provide their perspectives on immigration. The 
witnesses represented various industries, but underscored a unified 
theme: Skilled immigrants are contributing significantly to U.S. 
economic competitiveness and it is in our national interest to retain 
these talented individuals.\40\
---------------------------------------------------------------------------

    \37\ See generally Jennifer Hunt & Marjolaine Gauthier-Loiselle, 
How Much Does Immigration Boost Innovation?, Nat'l Bureau of Econ. 
Research, Sept. 2008, available at http://www.nber.org/papers/w14312.
    \38\ See Wadhwa, Vivek, et al., ``America's New Immigrant 
Entrepreneurs,'' Report by the Duke School of Engineering and the UC 
Berkeley School of Information (Jan. 4, 2007) available at http://
people.ischool.berkeley.edu/~anno/Papers/
Americas_new_immigrant_entrepreneurs_I.pdf; see also Wadhwa, Vivek, 
et al., Intellectual Property, the Immigration Backlog, and a 
Reverse Brain-Drain--America's New Immigrant Entrepreneurs, Part 
III, Center for Globalization, Governance & Competitiveness (Aug. 
2007), available at http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf; cf. Preston, Julia, ``Work Force Fueled by Highly Skilled 
Immigrants,'' N.Y. Times, Apr. 15, 2010, available at http://www.nytimes.com/2010/04/16/us/16skilled.html?_r=1.
    \39\ See Fairlie, Robert,''Kauffman Index of Entrepreneurial 
Activity: 1996-2012,'' The Ewing Marion Kauffman Foundation. Apr. 
2013, available at http://www.kauffman.org/what-we-do/research/2013/04/kauffman-index-of-entrepreneurial-activity-19962012; Partnership 
for a New American Economy, 2011, The ``New American'' Fortune 500, 
available athttp://www.nyc.gov/html/om/pdf/2011/partnership_for_a_new_american_economy_fortune_500.pdf.
    \40\ See Enhancing American Competitiveness through Skilled 
Immigration: Hearing before the H. Judiciary Subcomm. on 
Immigration, 113th Cong. 15 (2013), available at http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg79724/pdf/CHRG-113hhrg79724.pdf.
---------------------------------------------------------------------------

    As noted above, this rule is intended to reduce the disincentives 
to pursue lawful permanent residence due to the potentially long wait 
for immigrant visas for many H-1B nonimmigrants and their families. 
Also, this rule will encourage those H-1B nonimmigrants who have 
already started the process for permanent residence not to abandon 
their efforts because their H-4 dependent spouses are unable to work.
3. Volume Estimate
    Due to current data limitations, DHS is unable to precisely track 
the population of H-4 dependent spouses tied to H-1B nonimmigrants who 
have an approved Immigrant Petition for Alien Worker (Form I-140) or 
who have been granted H-1B status under the provisions of AC21. DHS 
databases are currently ``form-centric'' rather than ``person-
centric.'' As USCIS transforms its systems to a more fully electronic 
process, there will be a shift from application- and form-based 
databases to one database that tracks information by the applicant or 
petitioner and which will improve DHS's ability to track the number of 
potential H-4 employment authorization applicants.
    In the proposed rule, DHS estimated that as many as 100,600 H-4 
dependent spouses would be eligible to apply for employment 
authorization in the first year, and as many as 35,900 H-4 dependent 
spouses would be eligible to apply annually in subsequent years. The 
estimates provided in the proposed rule have been updated in this final 
rule. In an effort to provide a reasonable approximation of the number 
of H-4 dependent spouses who will be eligible for employment 
authorization under this final rule, DHS has compared historical data 
on persons obtaining LPR status against employment-based immigrant 
demand estimates. Based on current visa availability, DHS believes that 
dependent spouses of H-1B nonimmigrants who are seeking employment-
based visas under the second or third preference categories will be the 
group most impacted by the provisions of this rule, because certain 
chargeability areas in these preference categories are currently 
oversubscribed. In addition, in line with the goals of this rule and 
AC21, and based on immigration statistics, we assume that the large 
majority of H-4 dependent spouses who will be eligible for this 
provision are residing in the United States and will seek to acquire 
LPR status by applying to adjust status with USCIS rather than by 
departing for an indeterminate period to pursue consular processing of 
an immigrant visa application overseas. This assumption is supported by 
immigration statistics on those obtaining LPR status. In FY 2013, there 
were a total of 161,110 employment-based immigrant visa admissions, of 
which 140,009 (or 86.9 percent) obtained LPR status through adjustment 
of status in the United States.\41\ This analysis limits the focus and 
presentation of impacts based only on the employment-based preference 
immigrant population seeking to adjust status to that of a lawful 
permanent resident, rather than the employment-based preference 
immigrant population seeking to obtain an immigrant visa through 
consular processing.
---------------------------------------------------------------------------

    \41\ See DHS Office of Immigration Statistics, 2013 Yearbook of 
Immigration Statistics, Table 6, available at http://www.dhs.gov/yearbook-immigration-statistics-2013-lawful-permanent-residents 
(compare statistics listed under ``total employment-based 
preferences'' and ``adjustment of status employment-based 
preferences'').
---------------------------------------------------------------------------

    DHS will extend eligibility to apply for employment authorization 
to the H-4 dependent spouses of H-1B nonimmigrants who are principal 
beneficiaries of approved Form I-140 petitions or who have been granted 
H-1B status pursuant to sections 106(a) and (b) of AC21. Therefore, DHS 
assumes that the volume of H-4 dependent spouses newly eligible for 
employment authorization is comprised of two estimates: (1) an 
immediate, first year estimate due to the current backlog of Form I-140 
petitions; and (2) an annual estimate based on future demand to 
immigrate under employment-based preference categories. Extending 
eligibility for employment authorization to H-4 dependent spouses is 
ultimately tied to the actions taken by the H-1B nonimmigrant; 
therefore, the overall volume estimate is based on the population of H-
1B nonimmigrants who have taken steps to acquire LPR status under 
employment-based preference categories.
    DHS has estimated the number of persons waiting for LPR status in 
the first through third employment-based preference categories as of 
June 30, 2014. In this analysis, the estimated number of persons 
waiting for an immigrant visa is referred to as the ``backlog'' and 
includes those with an approved Form I-140 petition as of June 30, 2014 
and those with a filed Form I-140 petition that is pending as of June 
30 but is likely to be approved in the future.\42\ Currently, the first 
preference employment-based (EB-1) visa category is not oversubscribed. 
Therefore, DHS believes that the majority of H-4 dependent spouses 
applying for employment authorization under this rule will be those 
whose H-1B principals are seeking to adjust status under the second or 
third preference category. However, as there are persons with pending 
Form I-140 petitions in the first preference category that are approved 
or likely to be approved based on historical approval rates, and 
because the provisions of AC21 apply to these individuals, DHS has 
included them in this analysis.\43\ Additionally, DHS has examined 
detailed characteristics about the LPR population for FY 2009-FY 2013 
to further refine this estimate.\44\ We have laid out each of our 
assumptions and methodological steps for both the backlog and annual 
estimates of H-4 dependent spouses who will be eligible to apply for 
employment authorization. Again, the estimates are based on the actions 
and characteristics of the H-1B nonimmigrant (e.g., whether the H-1B 
nonimmigrant reports being married) because the H-4 dependent spouse's

[[Page 10306]]

eligibility to apply for employment authorization is tied to the steps 
taken on behalf of the H-1B nonimmigrant to acquire LPR status under an 
employment-based preference category.
---------------------------------------------------------------------------

    \42\ Source for backlog estimation: USCIS Office of Policy & 
Strategy analysis of data obtained from the USCIS Office of 
Performance and Quality. Analysis based on CLAIMS3 data captured in 
approved Immigrant Petition for Alien Worker (Form I-140). Of the 
Form I-140 petitions that were approved or pending as of June 30, 
2014, USCIS allocated those that were pending that were ``likely to 
be approved'' based on USCIS approval rates in order to more 
accurately estimate the cases in the backlog.
    \43\ Despite the fact that a beneficiary is in a preference 
category where a visa is immediately available, and the beneficiary 
is able to apply to adjust status to an LPR immediately upon the 
filing of the I-140 petition, DHS is including estimates of first-
preference LPRs that have an approved Form I-140 or are waiting for 
Form I-140 approval as of June 30, 2014 for which we are unable to 
determine that an adjustment of status application has been 
concurrently filed. As mentioned previously, principal beneficiaries 
of Form I-140 petitions and their dependents who are eligible to 
file for adjustment of status also are eligible for employment 
authorization.
    \44\ Source: USCIS Office of Policy & Strategy analysis of data 
obtained from DHS Office of Immigration Statistics. Analysis based 
on CLAIMS3 data captured in Application to Register Permanent 
Residence or Adjust Status (Form I-485) records approved in the FY 
2009-13 period.
---------------------------------------------------------------------------

a. Backlog Estimate
    The estimate of the number of individuals who are the principal 
beneficiaries of either an approved Form I-140 petition or a Form I-140 
petition that is likely to be approved and who are waiting for an 
immigrant visa in the EB-1, EB-2, and EB-3 categories is shown in Table 
3. Importantly, the number of principal workers shown in Table 3 is not 
limited only to those individuals who are currently in H-1B status. The 
estimates in Table 3 include aliens who are currently in H-1B and other 
nonimmigrant statuses, as well as those seeking to immigrate under 
employment-based preference categories who are currently abroad.

 Table 3--DHS Estimate of Backlog (Principals Only) as of June 30, 2014
------------------------------------------------------------------------
                                                              Principal
                    Preference category                        workers
------------------------------------------------------------------------
EB-1.......................................................        9,000
EB-2.......................................................      146,500
EB-3.......................................................       78,500
------------------------------------------------------------------------

    DHS is unable to precisely determine the number of H-1B 
nonimmigrants in the backlog who will be impacted by this rule. 
Instead, DHS examined detailed statistics of those obtaining LPR status 
from FY 2009-2013, and used this information as a proxy to refine the 
estimate of principal workers in the backlog that DHS expects to be 
married H-1B nonimmigrants seeking to adjust status. That estimate 
provides the basis for approximating the number of H-4 dependent 
spouses who will be impacted by this rule.\45\ Table 4 presents the 
assumptions and steps taken to determine the upper-bound estimate of H-
4 dependent spouses who are represented in the backlog and will likely 
now be eligible to apply for work authorization.
---------------------------------------------------------------------------

    \45\ Id.

 Table 4--Steps Taken To Arrive at the Upper-Bound Final Estimate of H-4 Dependent Spouses of H-1B Nonimmigrants
                                         Who Are in the ``Backlog'' \46\
----------------------------------------------------------------------------------------------------------------
                   Assumption and/or Step                         EB-1         EB-2         EB-3        Total
----------------------------------------------------------------------------------------------------------------
(1) Principal workers in the backlog (as of June 30, 2014)..        9,000      146,500       78,500      234,000
(2) Historical percentage of principal workers who obtained         96.1%        98.2%        89.3%  ...........
 LPR Status through adjustment of status, average over FY 09-
 FY13 data..................................................
(3) Estimated proportion of the backlog that DHS assumes            8,649      143,863       70,128      222,640
 will adjust status (rounded)...............................
(4) Historical percentage of those who adjusted status who          32.5%        89.3%        61.6%  ...........
 were H-1B nonimmigrants, average over FY 09-FY13 data......
(5) DHS estimated proportion of the assumed H-1B                    2,811      128,470       43,199      174,480
 nonimmigrants who adjusted status (rounded)................
(6) Historical percentage of H-1B principal workers who             81.1%        72.6%        67.2%  ...........
 adjusted status and who reported being married, average
 over FY 09-FY13 data.......................................
(7) DHS estimated proportion of the assumed H-1B                    2,280       93,269       29,030      124,579
 nonimmigrants who adjusted status and who report being
 married (rounded)..........................................
----------------------------------------------------------------------------------------------------------------
(8) Final Estimate of H-1B Nonimmigrants in the Backlog Potentially Impacted by the Final Rule           124,600
 (Rounded Up)
----------------------------------------------------------------------------------------------------------------

    As shown  in Table 4, DHS estimates there are approximately 124,600 
H-1B nonimmigrants currently in the backlog for an immigrant visa under 
the first through third employment-based preference categories who are 
married. Accordingly, DHS assumes by proxy that there could be as many 
as 124,600 H-4 dependent spouses of H-1B nonimmigrants currently in the 
backlog who could be initially eligible to apply for employment 
authorization under this rule. DHS does not have a similar way to parse 
out the backlog data for those classified as ``dependents'' to capture 
only those who are spouses rather than children. Furthermore, DHS 
recognizes that the estimate of H-4 dependent spouses in the backlog 
who will now be eligible to apply for employment authorization is a 
maximum estimate since there is no way to further refine this estimate 
by determining the immigration or citizenship status of the spouses of 
H-1B nonimmigrants who report being married. For instance, the spouse 
of the H-1B nonimmigrant could reside abroad, be a U.S. citizen or LPR, 
or be in another nonimmigrant status that confers employment 
eligibility. Additionally, H-4 dependent spouses who may be eligible 
for employment authorization under this rule may decide not to work and 
therefore not apply for an EAD. Accordingly, DHS believes that the 
estimate of 124,600 represents an upper-bound estimate of H-4 dependent 
spouses of H-1B nonimmigrants currently waiting for immigrant visas.
---------------------------------------------------------------------------

    \46\ Note: In the proposed rule, there was a data compilation 
error in step 4 for EB-2 estimates of the H-1B population which 
carried through the calculations. Instead of 19,159 reported in the 
proposed rule as the estimated proportion of H-1B nonimmigrants that 
adjusted their status to EB-2 and reported being married, that total 
should have read approximately 60,000. The proposed rule's total 
estimate of H-1B in the backlog as of September 2012 (step 8 of the 
calculation) should have read approximately 106,000 based on FY 08--
FY 11 data.
---------------------------------------------------------------------------

b. Annual Demand Estimate
    The annual demand flow of H-4 dependent spouses who will be 
eligible to apply for initial employment authorization under the final 
rule is based on: (1) The number of Form I-140 petitions approved where 
the principal beneficiary is currently in H-1B status; and (2) the 
number of extensions of stay petitions approved for H-1B nonimmigrants 
pursuant to AC21.\47\ Petitioners request extensions of stay or status 
for an H-1B nonimmigrant using the Petition for a Nonimmigrant Worker 
(Form I-129). Section 104(c) of AC21 allows for extensions of stay for 
an H-1B nonimmigrant who has an

[[Page 10307]]

approved Form I-140 petition but is unable to apply to adjust to LPR 
status because of visa unavailability. Sections 106(a) and (b) of AC21 
allow for extensions of stay for an H-1B nonimmigrant on whose behalf a 
labor certification application or a Form I-140 petition was filed at 
least 365 days prior to reaching the end of the sixth year of his or 
her H-1B status.
---------------------------------------------------------------------------

    \47\ There may be a very limited number of instances where an 
individual could be abroad and obtain an H-1B nonimmigrant visa 
pursuant to AC21; however, USCIS is unable to precisely determine 
this limited population due to current system limitations. As such, 
this analysis focuses only on those cases where an H-1B nonimmigrant 
is currently in the United States and requesting an extension of 
their H-1B status pursuant to AC21.
---------------------------------------------------------------------------

    In the preamble of the proposed rule, DHS used colloquial language 
to describe the basis for H-1B nonimmigrants to be eligible for 
extensions of their stay under section 106 of AC21. It is typical to 
describe H-1B nonimmigrants who are eligible for AC21 extensions as 
those H-1B nonimmigrants who are the beneficiaries of a labor 
certification application or Form 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. This colloquial description was used in the proposed rule; 
however, this language does not accurately describe AC21 eligibility. 
Per the statute, an H-1B nonimmigrant is eligible for an extension of 
stay pursuant to AC21 provided that they are the beneficiary of a labor 
certification application or a Form I-140 petition that has been filed 
at least 365 days prior to the end of their sixth year of H-1B status. 
From a practical standpoint, neither the labor certification nor the 
Form I-140 petition needs to remain pending adjudication for 365 days 
or more to qualify for an extension pursuant to AC21.
    It may be helpful to illustrate this description using a graphical 
illustration of a case where an H-1B nonimmigrant would generally be 
eligible for an extension of his or her maximum period of stay pursuant 
to AC21, even though neither the labor certification application nor 
the Form I-140 petition remain pending with DOL or DHS, respectively, 
for a year or more.
[GRAPHIC] [TIFF OMITTED] TR25FE15.017

In this illustration, the H-1B nonimmigrant would be eligible for 
extension of his or her stay pursuant to sections 106(a) and (b) of 
AC21, even though his or her labor certification was certified in 6 
months and the Form I-140 petition had only been pending for two months 
at the time of AC21 extension.
    In this final rule's preamble, DHS is correcting the description of 
how H-1B nonimmigrants become eligible for extensions of stay pursuant 
to sections 106(a) and (b) of AC21. Importantly, this language change 
does not impact who ultimately qualifies to apply for employment 
authorization under this final rule. The informal language used in the 
preamble of the proposed rule also does not impact the USCIS 
adjudication of petitions to authorize H-1B status pursuant to AC21. 
Accurately describing the statutory conditions of AC21 does, however, 
necessitate that DHS amend its estimate of the annual flow projections 
of H-4 dependent spouses who may be eligible to apply for employment 
authorization. In the proposed rule, DHS estimated the number of H-4 
dependent spouses who would be eligible to apply for work authorization 
pursuant to AC21 by examining historical data of labor certifications 
or Form I-140 petitions pending for a year or more with the DOL and 
DHS, respectively. In contrast, this final rule examines the historical 
data of extensions of stay petitions approved for nonimmigrants 
currently in H-1B status to estimate the volume of H-4 dependent 
spouses eligible to apply for work authorization pursuant to AC21.
    To recap, this rule will permit certain H-4 dependent spouses of H-
1B nonimmigrants to be eligible to apply for employment authorization 
provided that the H-1B nonimmigrants are: (1) The principal 
beneficiaries of an approved Form I-140 petition, or (2) granted H-1B 
status pursuant to sections 106(a) and (b) of AC21. The annual flow 
estimate will therefore be based on historical data of these two 
categories. USCIS began tracking those cases that were approved for an 
extension pursuant to AC21 on October 17, 2014; in the past, USCIS 
databases have not captured and stored this information.\48\ An 
extension of stay request may be submitted on behalf of H-1B 
nonimmigrants at any point throughout their authorized maximum six-year 
period of stay, or to extend stay beyond the maximum six years pursuant 
to AC21. Typically, an extension of stay request seeking eligibility 
pursuant to AC21 would be at least the second extension request filed 
on behalf of that H-1B nonimmigrant. The historical data of H-1B 
nonimmigrants who have been approved for extensions of stay include all 
requests, only some of which relate to extensions pursuant to AC21.
---------------------------------------------------------------------------

    \48\ On October 17, 2014, USCIS began capturing this information 
during the adjudication of Form I-129 petitions. Importantly, the 
tracking of cases that were approved for extension pursuant to AC21 
do not distinguish between cases approved under section 104 and 
cases approved under section 106. There is thus a potential for 
overlap between the estimate of cases approved under AC21 and the 
estimate of persons with approved Form I-140 petitions.
---------------------------------------------------------------------------

    The number of approved Form I-140 petitions and approved Form I-129 
extension of stay petitions where the beneficiary currently has H-1B 
status is presented in Table 5.

  Table 5--Form I-140 and Form I-129 (Extension of Status or Stay (EOS)
 Only) Approvals for Beneficiaries Currently in H-1B Nonimmigrant Status
------------------------------------------------------------------------
                                                              Form I-129
                                                              Extensions
                  Fiscal year                    Form I-140   of status/
                                                 approvals       stay
                                                              approvals
------------------------------------------------------------------------
2010..........................................       48,511      116,363
2011..........................................       54,363      163,208
2012..........................................       45,732      125,679
2013..........................................       43,873      158,482
2014..........................................       42,465      191,531
5-Year Average................................       46,989      151,053
------------------------------------------------------------------------

Based on approximately 90 days of tracking data (which is all that is

[[Page 10308]]

currently available), DHS estimates that 18.3 percent of approved 
extension of stay requests filed on behalf of H-1B nonimmigrants are 
approved pursuant to AC21. Assuming this proportion holds constant, DHS 
estimates that annually it will approve approximately 27,643 \49\ 
extension of stay requests pursuant to AC21. Importantly, because the 
tracking of extensions pursuant to AC21 does not distinguish between 
those cases adjudicated under section 104(c) of AC21 and those cases 
adjudicated under section 106 of AC21, there is likely some overlap in 
the baseline estimate of 27,643 and the estimate of persons who have 
approved I-140 petitions. Because DHS is unable to parse out the 
individuals who have extended their status pursuant to section 104(c) 
of AC21, and because such persons have approved I-140 petitions, DHS 
may be overestimating the annual number of H-4 dependent spouses who 
will be eligible to apply for initial employment authorization. 
However, while there is uncertainty that may result in overstating the 
annual estimates, DHS relied on the best available information to 
arrive at this estimate. Thus, for purposes of this analysis, DHS will 
use 74,632 \50\ as the baseline projection of H-1B nonimmigrants who 
have started the immigration process.
---------------------------------------------------------------------------

    \49\ Calculation: 151,053 (5-year average of I-129 extension of 
stay approvals) x 18.3 percent = 27,643 extensions approved pursuant 
to AC21.
    \50\ Calculation: 46,989 (5-year average of Form I-140 
approvals) + 27,643 (annual estimate of approved extensions of stay 
pursuant to AC21) = 74,632 baseline estimate.
---------------------------------------------------------------------------

    To refine the annual flow projection estimates, DHS has chosen to 
estimate the proportion of applications filed in the first through 
third employment-based preference categories. Additionally, since DHS 
has already limited the historical counts in Table 5 to those approved 
petitions where the beneficiary's current nonimmigrant classification 
is H-1B, DHS has made the assumption that the petitions shown in Table 
5 represent H-1B nonimmigrants who are physically present in the United 
States and intend to adjust status. As shown in Table 4, the historical 
proportion of H-1B nonimmigrants obtaining LPR status under EB-1, EB-2, 
and EB-3 categories who reported being married was 81.1 percent, 72.6 
percent, and 67.2 percent, respectively, resulting in an average of 
73.6 percent. Applying this percentage to the baseline projection 
results in an annual flow estimate of 55,000 (rounded).\51\ Again, due 
to the fact that DHS is unable to estimate the proportion of H-1B 
nonimmigrants granted extensions of status pursuant only to section 106 
of AC21, and because DHS is unable to determine the immigration or 
citizenship status of spouses of H-1B nonimmigrants who report being 
married, this is an upper-bound estimate of H-4 dependent spouses who 
could be eligible to apply for employment authorization under the rule.
---------------------------------------------------------------------------

    \51\ Calculation: 74,632 x 73.6 percent = 54,929 or 55,000 
rounded up to the nearest hundred.
---------------------------------------------------------------------------

    Therefore, DHS estimates that this rule will result in a maximum 
initial estimate of 179,600 \52\ H-4 dependent spouses who could be 
newly eligible to apply for employment authorization in the first year 
of implementation, and an annual flow of as many as 55,000 who are 
newly eligible in subsequent years.
---------------------------------------------------------------------------

    \52\ Calculation: Backlog of 124,600 plus annual demand estimate 
for married H-1Bs of 55,000 = 179,600.
---------------------------------------------------------------------------

4. Costs
i. Filer Costs
    The final rule will permit certain H-4 dependent spouses to apply 
for employment authorization in order to work in the United States. 
Therefore, only H-4 dependent spouses who decide to seek employment 
while residing in the United States will face the costs associated with 
obtaining employment authorization. The costs of the rule will stem 
from filing fees and the opportunity costs of time associated with 
filing Form I-765.
    The current filing fee for Form I-765 is $380. The fee is set at a 
level to recover the processing costs to DHS. Applicants for employment 
authorization are required to submit two passport-style photos along 
with the application, which is estimated to cost $20.00 per application 
based on Department of State estimates.\53\ DHS estimates the time 
burden of completing this application to be 3 hours and 25 minutes. DHS 
recognizes that H-4 dependent spouses do not currently participate in 
the U.S. labor market, and, as a result, are not represented in 
national average wage calculations. However, to provide a reasonable 
proxy of time valuation, DHS chose to use the minimum wage to estimate 
the opportunity cost consistent with methodology employed in other DHS 
rulemakings when estimating time burden costs for those who are not 
work authorized.
---------------------------------------------------------------------------

    \53\ DOS estimates an average cost of $10 per passport photo in 
the Paperwork Reduction Act (PRA) Supporting Statement found under 
OMB control number 1450-0004. A copy of the Supporting Statement is 
found on Reginfo.gov at http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001 (see question #13 of the 
Supporting Statement) (accessed Oct. 21, 2014).
---------------------------------------------------------------------------

    The Federal minimum wage is currently $7.25 per hour.\54\ In order 
to anticipate the full opportunity cost to petitioners, we multiplied 
the average hourly U.S. wage rate by 1.46 to account for the full cost 
of employee benefits such as paid leave, insurance, and retirement for 
a total of $10.59 per hour.\55\ Based on this wage rate, H-4 dependent 
spouses who decide to file Form I-765 applications will face an 
estimated opportunity cost of time of $36.18 per applicant.\56\ 
Combining the opportunity costs with the fee and estimated passport-
style photo costs, the total cost per application will be $436.18.\57\ 
In the first year of implementation, DHS estimates the total maximum 
cost to the total of H-4 dependent spouses who could be eligible to 
file for an initial employment authorization will be as much as 
$78,337,928 (non-discounted), and $23,989,900 annually in subsequent 
years. The 10-year discounted cost of this rule to filers of initial 
employment authorizations is $257,403,789 at 3 percent, while the 10-
year discounted cost to filers is $219,287,568 at 7 percent. 
Importantly, in future years the applicant pool of H-4 dependent 
spouses filing for employment authorization will include both those 
initially eligible and those who will seek to renew their EADs as they 
continue to wait for visas to become available. DHS could not project 
the number of renewals as the volume of H-4 dependent spouses who will 
need to renew is dependent upon visa availability, which differs based 
on the preference category and the country of nationality. H-4 
dependent spouses needing to renew their employment authorization will 
still face a per-application cost of $436.18.
---------------------------------------------------------------------------

    \54\ U.S. Dep't of Labor, Wage and Hour Division. The minimum 
wage in effect as of July 24, 2009, available at http://www.dol.gov/dol/topic/wages/minimumwage.htm.
    \55\ The calculation to burden the wage rate: $7.25 x 1.46 = 
$10.59 per hour. See Economic News Release, U.S. Dep't of Labor, 
Bureau of Labor Statistics, Table 1. Employer costs per hour worked 
for employee compensation and costs as a percent of total 
compensation: Civilian workers, by major occupational and industry 
group (June 2014), available at http://www.bls.gov/news.release/archives/ecec_09102014.htm (viewed Oct. 23, 2014).
    \56\ Calculation for opportunity cost of time: $10.59 per hour x 
3.4167 hours (net form completion time) = $36.18.
    \57\ Calculation for total application cost: $380 (filing fee) + 
$20 (cost estimate for passport photos) + $36.18 (opportunity cost 
of time) = $436.18.

---------------------------------------------------------------------------

[[Page 10309]]

ii. Government Costs
    The INA provides for the collection of fees at a level that will 
ensure recovery of the full costs of providing adjudication and 
naturalization services, including administrative costs and services 
provided without charge to certain applicants and petitioners. See INA 
section 286(m), 8 U.S.C. 1356(m). DHS has established the fee for the 
adjudication of Form I-765 in accordance with this requirement. As 
such, there are no additional costs to the Federal Government resulting 
from this rule.
iii. Impact on States
    Currently, once visas are determined to be immediately available, 
H-1B nonimmigrants and their dependent family members may be eligible 
to apply for adjustment of status to that of a lawful permanent 
resident. Upon filing an adjustment of status application, the H-4 
dependent spouse is eligible to request employment authorization. This 
rule will significantly accelerate the timeframe by which qualified H-4 
dependent spouses are eligible to enter the U.S. labor market. As a 
result of the changes made in this rule, certain H-4 dependent spouses 
will be eligible to request employment authorization well before they 
are eligible to apply for adjustment of status. Even with the change in 
the maximum number of H-4 dependent spouses who may be impacted as 
reported in the proposed rule and this final rule, DHS maintains that 
the expected outcomes are the same. DHS believes that this regulatory 
change will encourage families to stay committed to the immigrant visa 
process during the often lengthy wait for employment-based visas 
whereas, otherwise, they may leave the United States and abandon 
immigrant visa processing altogether. As such, DHS presents the 
geographic labor impact of this rule even though this rule does not 
result in ``new'' additions to the labor market; it simply accelerates 
the timeframe by which they can enter the labor market. As mentioned 
previously, DHS estimates this rule can add as many as 179,600 
additional persons to the U.S. labor force in the first year of 
implementation, and then as many as 55,000 additional persons annually 
in subsequent years. As of 2013, there were an estimated 155,389,000 
people in the U.S. civilian labor force.\58\ Consequently, 179,600 
additional available workers in the first year (the year with the 
largest number of eligible applicants) represent a little more than 
one-tenth of a percent, 0.1156 percent, of the overall U.S. civilian 
labor force (179,600/155,389,000 x 100 = 0.1156 percent).\59\
---------------------------------------------------------------------------

    \58\ See News Release, United States Dep't of Labor, Bureau of 
Labor Statistics, Local Area Unemployment Statistics, Regional and 
State Unemployment--2013 Annual Averages, Table 1 ``Employment 
status of the civilian noninstitutional population 16 years of age 
and over by region, division, and state, 2012-13 annual averages'' 
(Feb. 28, 2014), available at http://www.bls.gov/news.release/archives/srgune_02282014.pdf.
    \59\ Note that even with the changed estimate from the proposed 
rule, the finding remains consistent; the overall impact to the U.S. 
labor force is a fraction of one percent.
---------------------------------------------------------------------------

    The top five States where persons granted LPR status have chosen to 
reside are: California (20 percent), New York (14 percent), Florida (10 
percent), Texas (9 percent), and New Jersey (5 percent).\60\ While 
allowing certain H-4 dependent spouses the opportunity to work will 
result in a negligible increase to the overall domestic labor force, 
the states of California, New York, Florida, Texas, and New Jersey may 
have a slightly larger share of additional workers compared with the 
rest of the United States. Based on weighted average proportions 
calculated from FY 2009-2013, and assuming the estimate for first year 
impacts of 179,600 additional workers were distributed following the 
same patterns, DHS anticipates the following results: California could 
receive approximately 35,920 additional workers in the first year of 
implementation; New York could receive approximately 25,144 additional 
workers; Florida could receive approximately 17,960 additional workers; 
Texas could receive approximately 16,164 additional workers; and New 
Jersey could receive approximately 8,980 additional workers. To provide 
context, California had 18,597,000 persons in the civilian labor force 
in 2013.\61\ The additional 35,920 workers who could be added to the 
Californian labor force as a result of this rule in the first year 
would represent less than two-tenths of a percent of that state's labor 
force (35,920/18,597,000 x 100 = 0.1931 percent). As California is the 
state estimated to receive the highest number of additional workers, 
the impact on the states civilian labor force is minimal.
---------------------------------------------------------------------------

    \60\ DHS Office of Immigration Statistics, Annual Flow Reports, 
``U.S. Legal Permanent Residents'' for 2009-2012 and ``U.S. Lawful 
Permanent Residents: 2013,'' available at http://www.dhs.gov/immigration-statistics-publications#0. Author calculated percentage 
distributions by State weighted over FY 2009-2013 (rounded).
    \61\ See News Release, U.S. Dep't of Labor, Bureau of Labor 
Statistics, Local Area Unemployment Statistics, Regional and State 
Unemployment--2013 Annual Averages, Table 1, Employment status of 
the civilian noninstitutional population 16 years of age and over by 
region, division, and state, 2012-13 annual averages (Feb. 28, 
2014), available at http://www.bls.gov/news.release/archives/srgune_02282014.pdf.
---------------------------------------------------------------------------

5. Benefits
    As previously mentioned, once this rule is finalized, these 
amendments will increase incentives of certain H-1B nonimmigrants who 
have begun the process of becoming LPRs to remain in the United States 
and contribute to the U.S. economy as they complete this process. 
Providing the opportunity for certain H-4 dependent spouses to obtain 
employment authorization during this process will further incentivize 
H-1B nonimmigrants to not abandon their intention to remain in the 
United States while pursuing LPR status. Retaining highly skilled 
persons who intend to become LPRs is important when considering the 
contributions of these individuals to the U.S. economy, including 
advances in research and development and other entrepreneurial 
endeavors. As previously discussed, much research has been done to show 
the positive impacts on economic growth and job creation from highly 
skilled immigrants. In addition, these regulatory amendments will bring 
U.S. immigration policies more in line with the policies of other 
countries that seek to attract skilled foreign workers. For instance, 
in Canada spouses of temporary workers may obtain an ``open'' work 
permit allowing them to accept employment if the temporary worker meets 
certain criteria.\62\ As another example, in Australia, certain 
temporary work visas allow spousal employment.\63\
---------------------------------------------------------------------------

    \62\ See Canadian Government, Citizenship and Immigration 
Canada, Help Centre under Topic ``Work Permit--Can my spouse or 
common-law partner work in Canada?'', available at http://www.cic.gc.ca/english/helpcentre/index-featured-can.asp#tab1 (last 
visited Jan. 13, 2015).
    \63\ See Australian Government, Dep't of Immigration and 
Citizenship, Temporary Work (Skilled) visa (subclass 457), available 
at http://www.immi.gov.au/Visas/Pages/457.aspx (last visited Jan. 
13, 2015).
---------------------------------------------------------------------------

    This final rule will result in direct, tangible benefits for the 
spouses who will be eligible to enter the labor market earlier than 
they would have otherwise been able to do so due to the lack of 
immigrant visas. While there will be obvious financial benefits to the 
H-4 dependent spouse and the H-1B nonimmigrant's family, there is also 
evidence that participating in the U.S. workforce and improving socio-
economic attainment has a high correlation with smoothing an

[[Page 10310]]

immigrant's integration into American society.\64\
---------------------------------------------------------------------------

    \64\ See Jimen[eacute]z, Tom[aacute]s, Immigrants in the United 
States: How Well Are They Integrating into Society? (2011) 
Washington, DC: Migration Policy Institute, available at http://www.migrationpolicy.org/research/immigrants-united-states-how-well-are-they-integrating-society; see also Terrazas, Aaron, The Economic 
Integration of Immigrants in the United States: Long- and Short-Term 
Perspectives (2011) Washington, DC: Migration Policy Institute, 
available at http://www.migrationpolicy.org/research/economic-integration-immigrants-united-states.
---------------------------------------------------------------------------

    Prior to this rule being effective, H-4 dependent spouses were not 
able to apply for employment authorization until they were eligible to 
submit their applications for adjustment of status or otherwise acquire 
a nonimmigrant status authorizing employment. The amendments to the 
regulations made by this final rule accelerate the timeframe by which 
H-4 dependent spouses of H-1B nonimmigrants who are on the path to 
being LPRs are able to enter into the U.S. labor market.
6. Alternatives Considered
    One alternative considered by DHS was to permit employment 
authorization for all H-4 dependent spouses. As explained in both the 
proposed rule and in response to public comments, DHS declines to 
extend the changes made by this rule to H-4 dependent spouses of all H-
1B nonimmigrants at this time. Such an alternative would offer 
eligibility for employment authorization to those spouses of 
nonimmigrant workers who have not taken steps to demonstrate a desire 
to continue to remain in and contribute to the U.S. economy by seeking 
lawful permanent residence. In enacting AC21, Congress was especially 
concerned with avoiding the disruption to U.S. businesses caused by the 
required departure of H-1B nonimmigrants (for whom the businesses 
intended to file employment-based immigrant visa petitions) upon the 
expiration of the workers' maximum six-year period of authorized stay. 
See S. Rep. No. 106-260, at 22 (2000). This rule further alleviates 
these concerns.
    Another alternative considered was to limit employment eligibility 
to just those H-4 dependent spouses of H-1B nonimmigrants who extended 
their status under the provisions of AC21. As discussed in Section 3.b 
of this Executive Order 12866/13563 assessment, DHS databases began 
tracking the number of extensions of H-1B status that were approved 
pursuant to AC21 on October 17, 2014. Historically DHS did not capture 
this information. Based on approximately 90 days of case history, DHS 
believes that approximately 18.3 percent of all extension of stay 
applications filed on behalf of H-1B nonimmigrants are approved 
pursuant to AC21. DHS estimates that there could be as many as 27,643 
\65\ H-1B nonimmigrants with extensions of stay requests that were 
approved pursuant to AC21. Further, DHS estimates that there could be 
as many as 20,400 \66\ married H-1B nonimmigrants who are granted an 
extension of stay pursuant to AC21. This alternative would also result 
in some fraction of the backlog population being eligible for 
employment authorization in the first year after implementation, but 
DHS is unsure of what portion of the backlog population has been 
granted an extension under AC21. However, DHS believes that this 
alternative is too limiting and fails to recognize that other H-1B 
nonimmigrants and their H-4 dependent spouses also experience long 
waiting periods while on the path to lawful permanent residence. One of 
the primary goals of this rulemaking is to provide an incentive to H-1B 
nonimmigrant families to continue on the path to obtaining LPR status 
in order to minimize the potential for disruptions to U.S. businesses 
caused by the departure from the United States of these workers. The 
Department believes that also extending employment authorization to the 
spouses of H-1B nonimmigrants who are the beneficiaries of approved 
Form I-140 petitions more effectively accomplishes the goals of this 
rulemaking, because doing so incentivizes these workers, who have 
established certain eligibility requirements and demonstrated intent to 
reside permanently in the United States and contribute to the U.S. 
economy, to continue their pursuit of LPR status. Thus, extending 
employment authorization to H-4 dependent spouses of H-1B nonimmigrants 
with either approved Form I-140 petitions or who have been granted H-1B 
status pursuant to sections 106(a) and (b) of AC21 encourages a greater 
number of professionals with high-demand skills to remain in the United 
States.
---------------------------------------------------------------------------

    \65\ Calculation: 151,053 (5-year average of I-129 extension of 
stay approvals) x 18.3 percent = 27,643 extensions approved pursuant 
to AC21.
    \66\ Calculation: 27,643 (extensions approved pursuant to AC21) 
x 73.6 percent (average percentage of H-1B nonimmigrants who adjust 
to LPR status that report being married) = 20,345 or 20,400 (rounded 
up).
---------------------------------------------------------------------------

D. Regulatory Flexibility Act

    USCIS examined the impact of this rule on small entities under the 
Regulatory Flexibility Act (RFA), 5 U.S.C. 601(6). A small entity may 
be a small business (defined as any independently owned and operated 
business not dominant in its field that qualifies as a small business 
under the Small Business Act, 15 U.S.C. 632), a small not-for-profit 
organization, or a small governmental jurisdiction (locality with fewer 
than fifty thousand people). After considering the impact of this rule 
on such small entities, DHS has determined that this rule will not have 
a significant economic impact on a substantial number of small 
entities. The individual H-4 dependent spouses to whom this rule 
applies are not small entities as that term is defined in 5 U.S.C. 
601(6). Accordingly, DHS certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

E. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

 F. Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. See Public Law 104-13, 109 Stat. 163 (May 22, 
1995). This final rule requires that eligible H-4 dependent spouses 
requesting employment authorization complete an Application for 
Employment Authorization (Form I-765), covered under OMB Control number 
1615-0040. As a result of this final rule, this information collection 
will be revised. DHS has received approval of the revised information 
collection from OMB.
    DHS submitted the proposed revisions to Form I-765 to OMB for 
review. DHS has considered the public comments received in response to 
the publication of the proposed rule. Over 180 commenters raised issues 
related to employment authorization requests, including filing 
procedures, premium

[[Page 10311]]

processing, validity periods, renewals, evidentiary documentation, 
concurrent filings for extension of stay/change of status, automatic 
extensions of employment authorization, filing fees, and marriage 
fraud. One commenter asked for clarification regarding whether H-4 
dependent spouses under this rule are required to demonstrate economic 
need for employment authorization using the Form I-765 Worksheet (I-
765WS).
    DHS's responses to these comments appear under Part III.E. and F. 
USCIS has submitted the supporting statement to OMB as part of its 
request for approval of this revised information collection instrument.
    DHS has revised the originally proposed Form I-765 and form 
instructions to clarify the supporting documentation that applicants 
requesting employment authorization pursuant to this rule must submit 
with the form to establish eligibility, and to state that USCIS will 
accept Forms I-765 filed by such applicants concurrently with Forms I-
539. DHS has also revised the Form I-765 to include a check box for the 
applicant to identify him or herself as an H-4 dependent spouse. The 
inclusion of this box will aid USCIS in its efforts to more efficiently 
process the form for adjudication by facilitating USCIS's ability to 
match the application with related petitions integral to the 
adjudication of Form I-765. DHS does not anticipate any of these 
changes will result in changes to the previously reported time burden 
estimate. The revised materials can be viewed at www.regulations.gov.
    Lastly, DHS has updated the supporting statement to reflect a 
change in the estimate for the number of respondents that USCIS 
projected would submit this type of request from 1,891,823 respondents 
to 1,981,516 respondents. This change of the initially projected number 
of respondents is due to better estimates regarding the general 
population of I-765 filers, in addition to this final rule's revised 
estimate on the new number of applicants that will request EADs, which 
results in a change of the estimated population of aliens that DHS 
expects could file Form I-765. Specifically, in the proposed rule USCIS 
estimated that approximately 58,000 new respondents would file requests 
for EADs as a result of the changes prompted by this rule. USCIS has 
revised that estimate and projects in this final rule that 
approximately 117,300 new respondents will be able to file a Form I-
765. With this change on the number of Form I-765 application filers, 
the estimate for the total number of respondents has been updated. The 
current hour inventory approved for this form is 7,140,900 hours, and 
the requested new total hour burden is 8,159,070 hours, which is an 
increase of 1,018,170 annual burden hours.

V. Regulatory Amendments

    DHS adopted most of the proposed regulatory amendments without 
change, except for conforming amendments to 8 CFR 214.2(h)(9)(iv) and 8 
CFR 274a.13(d) and minor punctuation and wording changes in 8 CFR 
214.2(h)(9)(iv) to improve clarity and readability.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

    Accordingly, DHS amends chapter I of title 8 of the Code of Federal 
Regulations as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 
110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 
141 of the Compacts of Free Association with the Federated States of 
Micronesia and the Republic of the Marshall Islands, and with the 
Government of Palau, 48 U.S.C. 1901 note and 1931 note, 
respectively; 48 U.S.C. 1806; 8 CFR part 2.


0
2. Section 214.2 is amended by revising paragraph (h)(9)(iv) to read as 
follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (9) * * *
    (iv) H-4 dependents. The spouse and children of an H nonimmigrant, 
if they are accompanying or following to join such H nonimmigrant in 
the United States, may be admitted, if otherwise admissible, as H-4 
nonimmigrants for the same period of admission or extension as the 
principal spouse or parent. H-4 nonimmigrant status does not confer 
eligibility for employment authorization incident to status. An H-4 
nonimmigrant spouse of an H-1B nonimmigrant may be eligible for 
employment authorization only if the H-1B nonimmigrant is the 
beneficiary of an approved Immigrant Petition for Alien Worker, or 
successor form, or the H-1B nonimmigrant's period of stay in H-1B 
status is authorized in the United States under sections 106(a) and (b) 
of the American Competitiveness in the Twenty-first Century Act of 2000 
(AC21), Public Law 106-313, as amended by the 21st Century Department 
of Justice Appropriations Authorization Act, Public Law 107-273 (2002). 
To request employment authorization, an eligible H-4 nonimmigrant 
spouse must file an Application for Employment Authorization, or a 
successor form, in accordance with 8 CFR 274a.13 and the form 
instructions. If such Application for Employment Authorization is filed 
concurrently with another related benefit request(s), in accordance 
with and as permitted by form instructions, the 90-day period described 
in 8 CFR 274.13(d) will commence on the latest date that a concurrently 
filed related benefit request is approved. An Application for 
Employment Authorization must be accompanied by documentary evidence 
establishing eligibility, including evidence of the spousal 
relationship and that the principal H-1B is the beneficiary of an 
approved Immigrant Petition for Alien Worker or has been provided H-1B 
status under sections 106(a) and (b) of AC21, as amended by the 21st 
Century Department of Justice Appropriations Authorization Act, the H-
1B beneficiary is currently in H-1B status, and the H-4 nonimmigrant 
spouse is currently in H-4 status.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
3. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Public Law 
110-229; 48 U.S.C. 1806; 8 CFR part 2.


0
4. Section 274a.12 is amended by adding a new paragraph (c)(26), to 
read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (c) * * *
    (26) An H-4 nonimmigrant spouse of an H-1B nonimmigrant described 
as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv).
* * * * *

[[Page 10312]]


0
5. Section 274a.13 is amended by revising the first sentence of 
paragraph (d), to read as follows:


Sec.  274a.13  Application for employment authorization.

* * * * *
    (d) Interim employment authorization. USCIS will adjudicate the 
application within 90 days from the date of receipt of the application, 
except as described in 8 CFR 214.2(h)(9)(iv), and except in the case of 
an initial application for employment authorization under 8 CFR 
274a.12(c)(8), which is governed by paragraph (a)(2) of this section, 
and 8 CFR 274a.12(c)(9) in so far as it is governed by 8 CFR 245.13(j) 
and 245.15(n). * * *
* * * * *

Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-04042 Filed 2-24-15; 8:45 am]
BILLING CODE 9111-97-P