10284 Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 

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. 

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 


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Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 10285 

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. 

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). 

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] 

Year 1 estimate 

(179,600 filers) 

Sum of years 2–10 

(55,000 filers 

annually) 

Total over 10-year 

period of analysis * 

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 


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2These 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 percountry 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). 3For H–1B nonimmigrants performing DODrelated 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. 

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%—Continued 

[$Millions] 

Year 1 estimate 

(179,600 filers) 

Sum of years 2–10 

(55,000 filers 

annually) 

Total over 10-year 

period of analysis * 

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. 

* 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). 

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: 


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4The 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). 

5These 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. 

6The 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’’). 

• First preference (EB–1)—Aliens 

with extraordinary ability, outstanding 

professors and researchers, and certain 

multinational executives and managers; 

• Second preference (EB–2)—Aliens 

who are members of the professions 

holding advanced degrees or aliens of 

exceptional ability; 

• Third preference (EB–3)—Skilled 

workers, professionals, and other 

workers; 

• Fourth preference (EB–4)—Special 

immigrants (see INA section 101(a)(27), 

8 U.S.C. 1101(a)(27)); and 

• 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. 

B. Proposed Rule 

On May 12, 2014, DHS published a 

proposed rule in the Federal Register at 

79 FR 26886, proposing to amend: 

• 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 

• 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. 


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7An 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. 

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. 

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, 


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8See 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 § 104(c) is 

applicable when an alien . . . is the beneficiary of 

an approved I–140 petition.’’) (emphasis in 

original). 

9The 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). 

10As 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.’’). 

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. 

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. 

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

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, 


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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. 

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). 

13Currently, 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. 

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. 

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. 

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. 

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– 


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14To 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.’’ 

15On 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. 

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

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 


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16The 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. 

17See 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). 

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. 

19An 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). 

20A 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. 

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. 

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. 

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. 

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. 

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. 


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21According 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. 

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 


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

1184(c)(2)(E), (e)(6). 

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. 

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. 

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 


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23Moreover, 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’’). 

24For 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. 

25Commenters 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. 

26Commenters 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-meanimmigration-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. 

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

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 nativeworker 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 longterm. 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). 

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. 


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27Please refer to Section IV.C. of this document 

for a deeper discussion of the final estimate of the 

impact of this rule. 

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 employmentbased 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. 

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. 


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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 paperbased 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 sixmonth 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 


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28Unlike the I–140 adjudication, adjudication of 

Form I–539 requires evidence of such spousal 

relationship. 

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/aboutus/freedom-information-and-privacyact-foia/how-file-foia-privacy-actrequest/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. 

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 


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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-bycase 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. 


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29For 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. 

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

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 


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Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 10301 

30An 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. 

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. 

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. 


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31Section 201(d) of the INA, 8 U.S.C. 1151(d), 

prescribes the worldwide level of employmentbased 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. 

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. 

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. 


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Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 10303 

32The 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). 

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 foreignbased 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 sixyear 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-hourand-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. 

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] 

Year 1 estimate 

(179,600 filers) 

Sum of Years 2–10 

(55,000 filers 

annually) 

Total over 10-year 

period of analysis * 

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 


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33See 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. 34 Id. 

35See 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. 

36See 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. 

37See 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. 

38See 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 BrainDrain—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. 

39See 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-entrepreneurialactivity-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. 

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%—Continued 

[$Millions] 

Year 1 estimate 

(179,600 filers) 

Sum of Years 2–10 

(55,000 filers 

annually) 

Total over 10-year 

period of analysis * 

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. 

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

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

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 


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40See 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/CHRG113hhrg79724.pdf. 

41See DHS Office of Immigration Statistics, 2013 

Yearbook of Immigration Statistics, Table 6, 

available at http://www.dhs.gov/yearbookimmigration-statistics-2013-lawful-permanentresidents (compare statistics listed under ‘‘total 

employment-based preferences’’ and ‘‘adjustment of 

status employment-based preferences’’). 

42Source 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. 

44Source: 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. 

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

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 employmentbased preference immigrant population 

seeking to obtain an immigrant visa 

through consular processing. 

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 


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45 Id. 46Note: 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. 

47There 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. 

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. 

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 

Preference category Principal 

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. 

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 LPR Status through adjustment of status, average over FY 09–FY13 data .................................................... 96.1% 98.2% 89.3% ....................

(3) Estimated proportion of the backlog that DHS assumes will adjust status (rounded) ................................................................................................................................ 8,649 143,863 70,128 222,640 

(4) Historical percentage of those who adjusted status who were H–1B nonimmigrants, average over FY 09–FY13 data ............................................................... 32.5% 89.3% 61.6% ....................

(5) DHS estimated proportion of the assumed H–1B nonimmigrants who adjusted status (rounded) ................................................................................................................ 2,811 128,470 43,199 174,480 

(6) Historical percentage of H–1B principal workers who adjusted status and who reported being married, average over FY 09–FY13 data ............................................... 81.1% 72.6% 67.2% ....................

(7) DHS estimated proportion of the assumed H–1B nonimmigrants who adjusted status and who report being married (rounded) ............................................................... 2,280 93,269 29,030 124,579 

(8) Final Estimate of H–1B Nonimmigrants in the Backlog Potentially Impacted by the Final Rule (Rounded Up) 124,600 

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. 

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 


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48On 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. 

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. 

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. 

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. 

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

Fiscal year Form I–140 

approvals 

Form I–129 

Extensions 

of status/ 

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 


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49Calculation: 151,053 (5-year average of I–129 

extension of stay approvals) × 18.3 percent = 27,643 

extensions approved pursuant to AC21. 

50Calculation: 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. 

51Calculation: 74,632 × 73.6 percent = 54,929 or 

55,000 rounded up to the nearest hundred. 

52Calculation: Backlog of 124,600 plus annual 

demand estimate for married H–1Bs of 55,000 = 

179,600. 

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). 

54U.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. 

55The calculation to burden the wage rate: $7.25 

× 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). 

56Calculation for opportunity cost of time: $10.59 

per hour × 3.4167 hours (net form completion time) 

= $36.18. 

57Calculation for total application cost: $380 

(filing fee) + $20 (cost estimate for passport photos) 

+ $36.18 (opportunity cost of time) = $436.18. 

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. 

To refine the annual flow projection 

estimates, DHS has chosen to estimate 

the proportion of applications filed in 

the first through third employmentbased 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 upperbound estimate of H–4 dependent 

spouses who could be eligible to apply 

for employment authorization under the 

rule. 

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. 

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. 

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 perapplication cost of $436.18. 


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58See 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. 

59Note 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. 

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). 

61See 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. 

62See 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-featuredcan.asp#tab1 (last visited Jan. 13, 2015). 

63See 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). 

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 × 100 = 0.1156 

percent).59

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 × 

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. 

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

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 socioeconomic attainment has a high 

correlation with smoothing an 


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10310 Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 

64See Jimene ́z, Toma ́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-arethey-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-unitedstates. 

65Calculation: 151,053 (5-year average of I–129 

extension of stay approvals) × 18.3 percent = 27,643 

extensions approved pursuant to AC21. 

66Calculation: 27,643 (extensions approved 

pursuant to AC21) × 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). 

immigrant’s integration into American 

society.64

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 employmentbased 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. 

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 


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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 

■ 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. 

■ 2. Section 214.2 is amended by 

revising paragraph (h)(9)(iv) to read as 

follows: 

§ 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 

■ 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. 

■ 4. Section 274a.12 is amended by 

adding a new paragraph (c)(26), to read 

as follows: 

§ 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). 

* * * * * 


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10312 Federal Register / Vol. 80, No. 37 / Wednesday, February 25, 2015 / Rules and Regulations 

■ 5. Section 274a.13 is amended by 

revising the first sentence of paragraph 

(d), to read as follows: 

§ 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 


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