As anticipated and indicated in our “heat map” of immigration actions during the first 100 days in office, the Biden administration has withdrawn a rule proposed by the Trump administration that would have eliminated work authorization for the H-4 spouses of certain H-1B visa holders. The decision to withdraw the rule will allow the H-4 dependent spouse of an H-1B nonimmigrant who:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted an extension of their H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21)
to continue to file Form I-765, Application for Employment Authorization for an Employment Authorization Document (EAD). Under AC21 § 106, an H-1B nonimmigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the nonimmigrant’s behalf. According to a Cato Institute analysis published last summer, an estimated 90,000 H-4 spouses, some 87 percent of whom are Indian nationals, hold work authorization under the Obama-era regulation. The Trump administration had signaled shortly after the 2017 inauguration that it was planning to do away with H-4 work authorization, thus sowing seeds of uncertainty and fear within the Indian nonimmigrant community. The swift action by the Biden administration has put those fears to rest for now.