[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Proposed Rules]
[Pages 26886-26901]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10734]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

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


Employment Authorization for Certain H-4 Dependent Spouses

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Proposed rule.

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SUMMARY: The Department of Homeland Security proposes to extend the 
availability of employment authorization to certain H-4 dependent 
spouses of principal H-1B nonimmigrants. The extension would be limited 
to H-4 dependent spouses of principal H-1B nonimmigrants who are in the 
process of seeking lawful permanent resident status through employment. 
This population will include those H-4 dependent spouses of H-1B 
nonimmigrants if the H-1B nonimmigrants are either the beneficiaries of 
an approved Immigrant Petition for Alien Worker (Form I-140) or who 
have been granted an extension of their authorized period of admission 
in the United States under the American Competitiveness in the Twenty-
first Century Act of 2000 (AC21), as amended by the 21st Century 
Department of Justice Appropriations Authorization Act. This regulatory 
change would lessen any potential economic burden to the H-1B principal 
and H-4 dependent spouse during the transition from nonimmigrant to 
lawful permanent resident status, furthering the goals of attracting 
and retaining high-skilled foreign workers.

DATES: Written comments must be received on or before July 11, 2014.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2010-0017, by any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the Web site instructions for submitting comments.
     Email: You may submit comments directly to U.S. 
Citizenship and Immigration Services by email at 
uscisfrcomment@dhs.gov. Include DHS docket number USCIS-2010-0017 in 
the subject line of the message.
     Mail: Laura Dawkins, Chief Regulatory Coordinator, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
20 Massachusetts Avenue NW., Washington, DC 20529. To ensure proper 
handling, please reference DHS Docket No. USCIS-2010-0017 on your 
correspondence. This mailing address may also be used for paper, disk, 
or CD-ROM submissions.
     Hand Delivery/Courier: Laura Dawkins, Chief Regulatory 
Coordinator, Regulatory Coordination Division, Office of Policy and 
Strategy, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529; 
Telephone (202) 272-8377.

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. Public Participation
II. Executive Summary
    A. Purpose of the Regulatory Action
    1. Need for the Regulatory Action
    2. Proposed Process To Extend Employment Authorization to 
Certain H-4 Dependent Spouses
    3. Legal Authority
    B. Summary of the Major Provisions of the Proposed Rule
    C. Costs and Benefits
III. Background
    A. The H-1B Petition Process, Status Benefits and Validity 
Period
    B. Acquiring Lawful Permanent Resident Status
    C. Obtaining H-1B Nonimmigrant Status Past 6-Year Limit Under 
AC21
    D. Employment Authorization for H-4 Dependents
IV. Proposed Changes
V. 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 Proposed Rule
    3. Volume Projection
    4. Costs
    5. Benefits
    6. Alternatives Considered
    D. Regulatory Flexibility Act
    E. Executive Order 13132
    F. Executive Order 12988
    G. Paperwork Reduction Act

I. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, comments and/or arguments 
on all aspects of this proposed rule. U.S. Citizenship and Immigration 
Services (USCIS) also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this 
proposed rule. Comments that will provide the most assistance to USCIS 
in developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.
    Instructions: All submissions must include the agency name and DHS 
Docket No. USCIS-2010-0017 for this rulemaking. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

II. Executive Summary

A. Purpose of the Regulatory Action

 1. Need for the Regulatory Action
    Under current regulations, DHS does not list H-4 dependents 
(spouses and unmarried children under 21) of H-1B nonimmigrant workers 
among the classes of aliens eligible to work in the United States. See 
8 CFR 274a.12. The lack of employment authorization for H-4 dependent 
spouses often gives rise to personal and economic hardship for the 
families of H-1B nonimmigrants the longer they remain in the United 
States. In many cases, for those H-1B nonimmigrants and their families 
who wish to remain permanently in the United States, the timeframe 
required for an H-1B nonimmigrant to acquire

[[Page 26887]]

lawful permanent residence through his or her employment may be many 
years. As a result, retention of highly educated and highly skilled 
nonimmigrant workers in the United States can become problematic for 
employers. Retaining highly skilled persons who intend to acquire 
lawful permanent residence is important to the United States given the 
contributions of these individuals to the U.S. economy, including 
advances in entrepreneurial and research and development endeavors, 
which correlate highly with overall economic growth and job creation.
    In this rule, DHS is proposing to extend employment authorization 
to certain H-4 dependent spouses of H-1B nonimmigrants. DHS believes 
that this proposal would further encourage H-1B skilled workers to 
remain in the United States, continue contributing to the U.S. economy, 
and not abandon their efforts to become lawful permanent residents, to 
the detriment of their U.S. employer, because their H-4 nonimmigrant 
spouses are unable to obtain work authorization. This proposal would 
also remove the disincentive for many H-1B families to start the 
immigrant process due to the lengthy waiting periods associated with 
acquiring status as a lawful permanent resident of the United States.
2. Proposed Process To Extend Employment Authorization to Certain H-4 
Dependent Spouses
    With this rule, DHS is proposing to extend eligibility for 
employment authorization to certain H-4 dependent spouses of principal 
H-1B nonimmigrants who are in the process of seeking lawful permanent 
resident status through employment. This population will include H-4 
dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants are 
either the beneficiaries of an approved Immigrant Petition for Alien 
Worker (Form I-140) or have been granted an extension of their 
authorized period of admission in the United States under the American 
Competitiveness in the Twenty-first Century Act of 2000 (AC21), amended 
by the 21st Century Department of Justice Appropriations Authorization 
Act (herein collectively referred to as ``AC21'') \1\. This regulatory 
change would lessen any potential economic burden to the H-1B principal 
and H-4 dependent spouse during the transition from nonimmigrant to 
lawful permanent resident status, thereby fostering the goals of 
attracting and retaining high-skilled foreign workers and minimizing 
disruption to U.S. businesses employing H-1B workers that would result 
if such workers were to leave the United States.
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    \1\ Sections 106(a) and (b) of AC21 were amended by section 
11030A of the 21st Century Department of Justice Appropriations 
Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002). This 
act clarified who is eligible for an H-1B extension of stay beyond 
the limitation set forth in INA 214(g), 8 U.S.C. 1184(g), by 
eliminating the requirement that an employment-based immigrant 
petition or an application for adjustment of status must be filed on 
behalf of the individual in order for the individual to qualify for 
the extension. As such, an extension of stay now may be permitted 
for those individuals on whose behalf only a labor certification was 
filed, if he or she otherwise is eligible. The act also clarified 
that H-1B status could not be extended under section 106 of AC21 if 
the labor certification or employment-based immigrant petition has 
been denied, as well as upon a decision ``to grant or deny the 
alien's application for an immigrant visa or for adjustment of 
status.''
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3. Legal Authority
    The Secretary of Homeland Security's authority for this proposed 
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 of the Immigration and Nationality Act (INA or the 
Act), 8 U.S.C. 1103, which give the Secretary the authority to 
administer and enforce the immigration and nationality laws, as well as 
section 274A(h)(3) of the INA, 8 U.S.C. 1324a(h)(3), which refers to 
the Secretary's authority to authorize employment of noncitizens in the 
United States.

B. Summary of the Major Provisions of This Proposed Rule

    DHS proposes to amend its 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 have 
either been granted status pursuant to sections 106(a) and (b) of AC21 
or are the beneficiaries of an approved Immigrant Petition for Alien 
Worker (Form I-140).
    Under sections 106(a) and (b) of AC21, an H-1B nonimmigrant who is 
the beneficiary of a labor certification application or an employment-
based immigrant petition that has been pending for at least 365 days 
prior to reaching the end of the sixth year of H-1B nonimmigrant status 
may obtain H-1B nonimmigrant status past the sixth year, in one year 
increments. An H-4 dependent may also be admitted or granted extensions 
of stay for the same period that the H-1B nonimmigrant is authorized to 
remain in such status. This proposed rule would allow work 
authorization for an H-4 spouse whose H-1B spouse is maintaining his or 
her H-1B nonimmigrant status under sections 106(a) and (b) of AC21.
    Although an H-1B nonimmigrant may have already received an approval 
of his or her Form I-140 employment-based immigrant petition, she or he 
and his or her H-4 dependents may not be authorized to apply to adjust 
their status to that of a lawful permanent resident or otherwise seek 
lawful permanent resident status at a consular office abroad 
immediately. Instead, they may need to wait until an immigrant visa 
number is available, which may take years. While the H-1B nonimmigrant 
may continue working so long as he or she maintains H-1B nonimmigrant 
status under section 104(c) of AC21, the H-4 dependent spouse generally 
is not eligible for employment authorization under current regulations 
until he or she is eligible to apply for adjustment of status or has 
changed to another nonimmigrant status authorizing him or her to work. 
This proposed rule would also extend employment authorization 
eligibility to this group of H-4 nonimmigrant spouses.
    DHS also proposes to amend 8 CFR 274a.12(c) by adding paragraph 
(26), which would list the H-4 nonimmigrant spouses described in 
revised 8 CFR 214.2(h)(9)(iv) as a new class of aliens eligible to 
request employment authorization from USCIS. Therefore, as is the case 
with all classes of aliens listed in 8 CFR 274a.12(c), aliens seeking 
employment authorization who fall within the new class of aliens 
proposed in this rule would only be employment authorized following 
approval of their Application for Employment Authorization (Form I-765) 
by USCIS and receipt of an Employment Authorization Document (Form I-
766). The determination whether to approve an application for 
employment authorization filed by an H-4 nonimmigrant lies within the 
sole discretion of USCIS. See 8 CFR 274a.13(a)(1).

C. Costs and Benefits

    The proposed amendment would permit certain H-4 spouses to request 
employment authorization. DHS estimates the current population of H-4 
dependent spouses who would be initially eligible for employment 
authorization under this proposed rule could be as many as 100,600 
after taking into account the backlog of those with approved or likely 
to be approved employment-based immigrant petitions but who are unable 
to file for adjustment of status to that of a lawful permanent 
resident. DHS has assumed that those H-4 dependent spouses in the

[[Page 26888]]

backlog population would file for employment authorization in the first 
year of implementation for ease of analysis, so the first year 
estimates include both the backlog estimate and the annual flow 
estimate of initial filers. DHS estimates the flow of H-4 dependent 
spouses that could apply for initial employment authorization in 
subsequent years to be as many as 35,900 annually. This is a high-end 
estimate of the affected population since only H-4 dependent spouses 
who decide to apply for employment authorization while residing in the 
United States would face the costs associated with obtaining employment 
authorization. Additionally, in future years there could be additional 
filings from H-4 spouses who apply to renew their employment 
authorization while continuing to wait for visas to become available. 
Although DHS was unable to predict the volume of H-4 spouses that would 
need to renew their employment authorization, the individual cost faced 
by these filers would be identical to first-time filers for employment 
authorization. The costs of the rule would stem from filing fees, the 
opportunity costs of time associated with filing an Application for 
Employment Authorization, and the estimated cost of procuring two 
passport-style photos which must be submitted with the application.
    These amendments would increase incentives of H-1B nonimmigrant 
workers who have begun the immigration process to remain in and 
contribute to the U.S. economy as they complete the process to adjust 
status to or otherwise acquire lawful permanent resident status, and 
thereby minimize disruptions to the petitioning U.S. employer. 
Providing the opportunity for certain H-4 dependent spouses to work 
while the H-1B nonimmigrant is waiting for a visa number to become 
available would encourage the H-1B principal to remain employed in the 
United States and continue to pursue his or her efforts to immigrate 
notwithstanding oftentimes lengthy waiting periods for immigrant visa 
availability. Attracting and retaining highly skilled persons who 
intend to acquire lawful permanent resident status is important when 
considering the contributions of these individuals to the U.S. economy, 
including advances in entrepreneurial and research and development 
endeavors, which are highly correlated with overall economic growth and 
job creation. In addition, the proposed amendments would bring U.S. 
immigration laws more in line with other countries that are also 
competing to attract and retain similar high-skilled foreign workers.

 Table 1--Total Costs of Initial Employment Authorization for Certain H-4 Dependent Spouses 10-Yr. Present Value
                                             Estimates at 3% and 7%
                                                   [$Millions]
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                                                                   Sum of years 2-10
                                           Year 1 estimate           (35,900 filers         Total over 10-year
                                           (100,600 filers)            annually)          period of analysis \2\
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3% Discount Rate:
    Total Costs Incurred by Filers                       $42.6                   $118.2                   $160.8
     @3%.............................
7% Discount Rate:
    Total Costs Incurred by Filers                        41.0                     95.2                    136.2
     @7%.............................
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Qualitative Benefits.................  This rule is intended to remove the disincentive to pursue the
                                       immigration process due to the potentially long wait for available
                                       employment-based immigrant visas for many H-1B nonimmigrant families.
                                       Also, this rule will encourage H-1B skilled workers who have already
                                       taken steps to become lawful permanent residents (LPRs) to not abandon
                                       their efforts to acquire lawful permanent residence because their H-4
                                       spouse is unable to work. By encouraging the H-1B workers to continue in
                                       their pursuit of becoming LPRs, this rule would result in minimizing
                                       disruptions to petitioning U.S. employers. Eligible H-4 spouses who
                                       participate in the labor market will benefit financially. We also
                                       anticipate that the socio-economic benefits will assist the family in
                                       more easily integrating into American society.
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    \2\ Totals may not sum due to rounding.
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III. Background

A. The H-1B Petition Process, Status Benefits and Validity Period

    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. 
Immigration and Nationality Act (INA) section 101(a)(15)(H), 8 U.S.C. 
1101(a)(15)(H); 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)(1) 
and 8 CFR 214.2(h)(1)(ii)(B)(3). Upon certification of the LCA, the 
petitioner may file with USCIS a Petition for a Nonimmigrant Worker 
(Form I-129 with H supplements or successor form(s)) (hereinafter ``H-
1B petition'').
    If USCIS approves the H-1B petition, the approved H-1B status is 
valid for an initial period of up to three years, after which USCIS may 
grant extensions for up to an additional three years such that the 
total period of the H-1B worker'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), (h)(15)(ii)(B)(1). At the end of the 
6-year period, the nonimmigrant generally must depart from the United 
States unless he or she falls within one of the exceptions to the 6-
year ceiling,\3\ he or she has changed to another nonimmigrant status, 
or he or she has applied to adjust status to that of a

[[Page 26889]]

lawful permanent resident. 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. Unless he or she 
falls under one of the exceptions, the nonimmigrant must depart from 
the United States and remain outside the United States for at least one 
year to be eligible for a new 6-year period of admission in H-1B 
nonimmigrant status. See 8 CFR 214.2(h)(13)(iii)(A).
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    \3\ Under sections 104(c) and 106(a)-(b) of AC21, certain 
nonimmigrants are exempt from the 6-year maximum period of 
admission.
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    For H-1B nonimmigrants performing DOD-related services, the 
approved H-1B status is valid for an initial period of up to five 
years, after which they may obtain up to an additional five years for a 
total period of admission not to exceed 10 years. 8 CFR 
214.2(h)(9)(iii)(A)(2), (h)(15)(ii)(B)(2).\4\
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    \4\ This rule could 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. These H-1B nonimmigrants cannot benefit 
from AC21 sections 106(a) or (b), because those sections solely 
relate to the generally applicable 6-year limitation on H-1B status 
under INA section 214(g)(4), whereas the 10 year limitation on H-1B 
status for DOD-related services is pursuant to section 222 of the 
Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978 (Nov. 
29, 1990); see 8 U.S.C. 1101 note.
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    The spouse and unmarried children under 21 (dependents) of the H-1B 
temporary worker are entitled to H-4 nonimmigrant classification and 
are subject to the same period of admission and limitations as the H-1B 
nonimmigrant. See 8 CFR 214.2(h)(9)(iv). Currently, DHS does not 
authorize H-4 nonimmigrants for employment based on their H-4 
nonimmigrant status. If, however, an H-4 nonimmigrant is eligible to 
apply to adjust his or her status to that of a lawful permanent 
resident and has filed such an application, he or she may obtain 
employment authorization based on the pending adjustment of status 
application. See 8 CFR 274a.12(c)(9).

B. Acquiring Lawful Permanent Resident Status

    For those H-1B nonimmigrants seeking to adjust their status to or 
otherwise acquire lawful permanent resident status, an employer or U.S. 
citizen or lawful permanent resident family member generally must first 
petition for them, unless they are qualified to self-petition, before 
they are eligible to file an adjustment of status application or 
otherwise seek to acquire status as a lawful permanent resident. See 
INA section 204(a), 8 U.S.C. 1154(a). Many H-1B nonimmigrants seeking 
lawful permanent resident status in the United States apply on the 
basis of employment. There are several employment-based (EB) immigrant 
classifications for which someone holding H-1B status may qualify for:

 EB-1--Aliens with extraordinary ability, outstanding 
professors and researchers, and certain multinational executives and 
managers
 EB-2--Aliens who are members of the professions holding 
advanced degrees or aliens of exceptional ability
 EB-3--Skilled workers, professionals, and other workers
 EB-4--Special immigrants (See INA section 101(a)(27), 8 U.S.C. 
1101(a)(27))
 EB-5--Employment creation immigrants

See INA section 203(b), 8 U.S.C. 1153(b).
    For certain EB-2 and EB-3 classifications, prior to filing an 
immigrant petition on behalf of the individual with USCIS, employers 
must first obtain a labor certification from the DOL or provide 
evidence that the individual qualifies for Schedule A designation or 
for the DOL's Labor Market Information Pilot Program regarding a 
shortage of U.S. workers in the individual's occupation. See 8 CFR 
204.5(a)(2). In order to apply for lawful permanent residence, an 
immigrant visa must be immediately available. See INA sections 201(a), 
203(b), and 245(a); 8 U.S.C. 1151(a), 1153(b), 1255(a). An immigrant 
visa is ``immediately available'' if the priority date for the 
preference category is current according to the U.S. Department of 
State Visa Bulletin issued for the month in which the application for 
an immigrant visa is filed. The Visa Bulletin dates indicate whether an 
applicant, based on his or her priority date and country of birth, can 
file an adjustment of status application with USCIS or an application 
for an immigrant visa with the U.S. consular office abroad, or whether 
there is a backlog in order to apply to acquire lawful permanent 
residence. See id.; see also 8 CFR 245.1(g)(1) and 245.2(a)(2)(i)(B). 
If a labor certification is required, the priority date is the date the 
labor certification was accepted for processing by DOL. See 8 CFR 
204.5(d). If no labor certification is required, the priority date is 
the date the Form I-140 petition was accepted by USCIS for processing. 
See INA section 203(e)(1), 8 USC 1153(e)(1); 22 CFR 42.53(a).

C. Obtaining H-1B Nonimmigrant Status Past the 6-Year Limit Under AC21

    There are certain exceptions to the 6-year limit on a 
nonimmigrant's period of stay in H-1B status. These exceptions allow 
the individual to obtain H-1B nonimmigrant status beyond the six-year 
limit. One of these exceptions is found in sections 106(a) and (b) of 
AC21.\5\
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    \5\ An H-1B nonimmigrant may also extend his or stay beyond the 
six-year period of stay under section 104(c) of AC21 if he or she is 
the beneficiary of an approved I-140 petition and an immigrant visa 
is not immediately available. While this rule does not address H-4 
spouses of H-1B nonimmigrants who have extended their stay under 
section 104(c) of AC21, these H-4 spouses would be eligible for work 
authorization under this rule, as their H-1B nonimmigrant spouses 
are beneficiaries of an approved I-140 petition.
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    Under sections 106(a) and (b) of AC21, an H-1B temporary worker who 
is the beneficiary of a labor certification application or an 
employment-based immigrant petition that has been pending for at least 
365 days prior to reaching the end of the sixth year of H-1B 
nonimmigrant status may obtain H-1B nonimmigrant status past the sixth 
year, in one year increments. See Public Law 106-313, section 106(a)-
(b).\6\ An H-4 dependent also may be admitted or granted extensions of 
stay for the same period that the H-1B temporary worker is authorized 
to remain in such status. See 8 CFR 214.2(h)(9)(iv). Under current 
USCIS policy, USCIS may grant extensions of stay in 1-year increments 
until a final decision is made to either: (1) Deny the application for 
labor certification; (2) if the labor certification is approved, to 
revoke the approved labor certification; (3) Deny (or, if approved, 
revoke) the EB immigrant petition; or (4) Grant or deny the 
individual's application for an immigrant visa or for adjustment of 
status.\7\
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    \6\ Sections 106(a) and (b) of AC21 were amended by section 
11030A of the 21st Century Department of Justice Appropriations 
Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002). This 
act clarified who is eligible for an H-1B extension of stay beyond 
the limitation set forth in INA 214(g), 8 U.S.C. 1184(g), by 
eliminating the requirement that an employment-based immigrant 
petition or an application for adjustment of status must be filed on 
behalf of the individual in order for the individual to qualify for 
the extension. As such, an extension of stay now may be permitted 
for those individuals on whose behalf only a labor certification was 
filed, if he or she otherwise is eligible. The act also clarified 
that H-1B status could not be extended under section 106 of AC21 if 
the labor certification or employment-based immigrant petition has 
been denied, as well as upon a decision ``to grant or deny the 
alien's application for an immigrant visa or for adjustment of 
status.''
    \7\ See Mem. from Donald Neufeld, Acting Assoc. Dir., Domestic 
Operations, USCIS, Supplemental Guidance Relating to Processing 
Forms I-140 Employment-based Immigrant Petitions and I-129 H-1B 
Petitions, and Form I-485 Adjustment Applications Affected by AC21 
(May 30, 2008) available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf.
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    Sections 106(a) and (b) of AC21 permit H-1B nonimmigrants to work 
and remain in the United States to apply

[[Page 26890]]

for lawful permanent resident status while they await required 
decisions by DOL and/or USCIS on required filings to obtain status as a 
lawful permanent resident. Prior to AC21, such individuals often would 
have been required to leave the United States to await decisions from 
DOL and USCIS pending past their 6-year maximum period of authorized 
stay and apply for lawful permanent resident status outside the United 
States.

D. Employment Authorization for H-4 Dependents

    The INA does not require DHS to extend employment authorization to 
H-4 dependents of H-1B nonimmigrants.\8\ AC21 also does not require DHS 
to extend employment authorization to H-4 dependent spouses who remain 
in H-4 status beyond the six-year limitation and are otherwise unable 
to obtain work authorization during the process for obtaining lawful 
permanent resident status. See Public Law 106-313, section 106(a),-(b).
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    \8\ There is a limited exception in cases of battered spouses. 
Section 814(b) of 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), 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.
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    DHS regulations provide that H-4 dependents may reside in the 
United States, subject to the same period of admission and limitation 
as the H principal beneficiary. 8 CFR 214.2(h)(9)(iv). Current 
regulations prohibit H-4 dependents from working in the United States 
in H-4 status. Id. However, these individuals may obtain employment 
authorization either by obtaining a different status that would provide 
employment authorization or by pursuing lawful permanent residence 
through an application for adjustment of status. See INA section 248, 8 
U.S.C. 1258 (change of status); INA section 245(a), 8 U.S.C. 1255(a) 
(adjustment of status); 8 CFR 274a.12(c)(9).
    Although H-4 dependents may obtain employment authorization by 
changing status to a different work authorized nonimmigrant 
classification, such as the H-1B or O-1 (individuals with extraordinary 
ability or achievement) classifications, not all H-4 dependents meet 
the statutory and regulatory requirements for changing status to an 
employment-authorized nonimmigrant classification. Furthermore, an H-4 
dependent who wants to become a lawful permanent resident while 
remaining in the United States can only change status to a 
classification that would allow for dual intent, such that the 
nonimmigrant could simultaneously pursue lawful permanent residence 
while maintaining nonimmigrant status.\9\ INA sections 101(a)(15) 
(defining the term ``immigrant''); 214(b) (discussing presumption of 
immigrant intent) and 214(h) (discussing effect of seeking lawful 
permanent residence on an alien's ability to maintain or obtain a 
change of status to H-1B status), 8 U.S.C. 1101(a)(15) and 1184(b), 
(h).
---------------------------------------------------------------------------

    \9\ Neither H-1B nor L classification may be denied solely 
because the alien seeking such classification is also pursuing 
permanent residence. See section 214(h) of the INA, 8 USC 1184(h); 8 
CFR 214.2(h)(16)(i), 214.2(l)(16). Moreover, the H-4 spouse of an H-
1B nonimmigrant is entitled to the same period of admission, and is 
subject to the same limitations on stay, as the H-1B nonimmigrant, 
if accompanying or following to join the H-1B nonimmigrant. See 8 
CFR 214.2(h)(9)(iv). As such, the doctrine of dual intent has 
historically been applied to the H-4 spouse, who may therefore 
pursue permanent residence while maintaining H-4 status. This 
application of dual intent is supported at 8 CFR 214.2(l)(16)(iv), 
which prohibits the denial of an alien's application to change from 
L-2 to H-4 status solely because the alien is also pursuing 
permanent residence.
---------------------------------------------------------------------------

    As an alternative, the H-4 nonimmigrant can wait to apply for work 
authorization during the adjustment of status application process 
following approval of an employment-based immigrant petition of which 
he or she is a derivative beneficiary. Under this scenario, however, H-
4 nonimmigrants may be subject to lengthy immigrant visa availability 
delays before they may file adjustment of status applications, and 
related applications for work and travel authorization. See 8 CFR 
274a.12(c)(9) (authorizing employment authorization for adjustment-of-
status applicants).
    It often takes years before an immigrant visa number becomes 
available. The INA limits the supply of available employment-based 
immigrant visas for each fiscal year, and the demand for visas 
typically exceeds the supply. The INA sets forth five employment-based 
preference classifications for employment-based immigrants and 
allocates the number of available world-wide visas among those 
categories. INA sections 201(d) and 203(b), 8 U.S.C. 1151(d) and 
1153(b). The INA further limits the number of available visas for 
particular categories of foreign nationals based upon an annual per-
country numerical limit. INA section 202(a)(2), 8 U.S.C. 1152(a)(2). 
This statutory formula has historically led to oversubscription in the 
employment-based second (EB-2) and third categories (EB-3), which are 
the categories through which H-1B nonimmigrants and their H-4 
dependents typically seek permanent resident status. For instance, the 
approximate backlog for an EB-3 immigrant visa for individuals, other 
than nationals of India or the Philippines, presently is a little over 
18 months. For nationals of India applying in the same EB-3 category, 
the approximate backlog is more than 10 years.\10\
---------------------------------------------------------------------------

    \10\ According to the Department of State's Visa Bulletin for 
April 2014, the cut-off date for persons qualifying under the 
employment-based third preference category is October 1, 2012 for 
individuals not charged to India or the Philippines, September 15, 
2003 if charged to India, and June 15, 2007 if charged to the 
Philippines. See http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_april2014.pdf. Unless such nationals have a 
priority date before the respective cut-off date, they are unable to 
file an adjustment of status application or otherwise acquire lawful 
permanent residence at this time, and if they have a pending 
application previously filed when the cut-off date was current, 
their application cannot be approved unless their priority date is 
before the current cut-off date. See generally 8 CFR 245.1(a), (g), 
8 CFR 245.2(a)(2).
---------------------------------------------------------------------------

    To ease the negative impact of the 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 15 (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 U.S. or through consular processing 
abroad, thus limiting the disruption to American businesses.'').
    DHS recognizes that the limitation on the period of stay is not the 
only event that could cause an H-1B worker to leave his or her 
employment and cause disruption to the petitioning employer's business, 
including the loss of significant time and money invested in the 
immigration process. Prohibiting H-4 dependent spouse employment 
authorization beyond the six-year period of stay, when the H-1B worker 
is authorized status beyond six years under AC21, or the point where 
the H-1B nonimmigrant and his or her family are firmly on the path to 
lawful

[[Page 26891]]

permanent residence also creates significant financial obstacles for 
many H-1B workers and their families because of the inability of the H-
4 spouse to work, which in turn threaten disruption to the business of 
U.S. employers.
    In light of the foregoing, DHS is proposing to extend eligibility 
for employment authorization to H-4 dependent spouses of H-1B 
nonimmigrants remaining in the United States pursuant to extensions of 
stay based on sections 106(a) and (b) of AC21, and to H-4 nonimmigrants 
whose H-1B nonimmigrant spouses are beneficiaries of an approved Form 
I-140. See generally INA section 103(a), 8 U.S.C. 1103(a) (generally 
authorizing the Secretary to administer and enforce the immigration 
laws); INA section 274A(h)(3), 8 U.S.C. 1324a(h)(3) (generally 
authorizing the Secretary to provide for employment authorization for 
aliens in the United States); INA section 214(a)(1), 8 U.S.C. 
1184(a)(1) (authorizing the Secretary to prescribe regulations setting 
terms and conditions of admission of nonimmigrants). DHS believes that 
amending its regulations in this manner will encourage, consistent with 
the congressional intent expressed in AC21, potential H-1B 
nonimmigrants seeking lawful permanent residence and their H-4 
dependents to remain in the United States, thereby relieving U.S. 
employers of additional disruptions, and furthers the goals of 
attracting and retaining high-skilled foreign workers. This goal is 
inherent to AC21 and is further reflected in DHS's proposed amendments 
to the regulations.
    DHS cannot alleviate the delays in visa processing due to the 
numerical limitations set by statute and the resultant unavailability 
of visa numbers, but can alleviate the disruption caused to H-1B 
nonimmigrants, their families, and U.S. employers by such delays if H-
1B nonimmigrants and their families choose to leave the United States. 
In essence, this change furthers an important public policy goal of 
enabling U.S. employers to attract and retain highly skilled workers. 
In effectuating this policy, DHS is addressing obstacles that may cause 
these workers to leave the United States or never seek employment in 
the United States in the first instance and produce the circumstance 
Congress attempted to prevent through AC21, i.e., significant 
disruptions to U.S. employers.
    DHS is proposing in this rule to extend eligibility for employment 
authorization only to H-4 dependent spouses of H-1B nonimmigrants for 
whom the process for attaining lawful permanent resident status is well 
underway.\11\ DHS is proposing limitations on which H-4 dependent 
spouses of H-1B nonimmigrants may be eligible for employment 
authorization rather than extending eligibility to all H-4 dependent 
spouses of H-1B nonimmigrants because the goal of this proposed rule is 
to enhance the United States' ability to attract and more permanently 
retain high-skilled foreign workers. Due to the proposed rule's focus 
on high-skilled H-1B workers, H-4 spouses of H-2A/B and H-3 principals 
are not included in this rule.\12\
---------------------------------------------------------------------------

    \11\ Extension of eligibility for employment authorization to H-
4 dependent children is beyond the scope of this proposed rule, but 
in any event limiting eligibility to H-4 dependent spouses is 
consistent with statutory authorities relating to other nonimmigrant 
employment categories (E-1/E-2, L-1), that allow employment 
authorization for dependent spouses only. See INA section 
214(c)(2)(E), (e)(6).
    \12\ See Beach Commc'ns v. FCC, 508 U.S. 307, 316 (1993) 
(observing that policymakers ``must be allowed leeway to approach a 
perceived problem incrementally'').
---------------------------------------------------------------------------

    Similarly, DHS is not extending eligibility for employment 
authorization to H-4 dependent children as DHS believes that extending 
employment eligibility to H-4 dependent spouses would alleviate the 
significant portion of any potential economic burdens H-1B principals 
may face during the transition from nonimmigrant to lawful permanent 
resident status as a result of the lack of employment authorization for 
their dependents. Additionally, limiting the employment authorization 
to dependent spouses provides parity with other nonimmigrant employment 
categories, such as nonimmigrants in L (intracompany transferee), E-
1(treaty trader), and E-2 (treaty investor) status.
    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. In doing so, DHS is 
limiting employment authorization to H-4 dependents of H-1B spouses who 
have taken steps in attaining lawful permanent resident status. DHS 
believes that this limitation is appropriate in furthering the goal of 
retaining high-skilled workers by providing greater incentive to H-1B 
principals and their spouses who have taken these steps to remain in 
the United States until such time as they are admitted as lawful 
permanent residents. In enacting AC21, Congress hoped to reduce the 
disruption to U.S. businesses and to the U.S. economy caused by the 
required departure of H-1B workers (for whom the businesses intended to 
file employment-based immigrant visa petitions) upon the expiration of 
workers' maximum six year period of authorized stay. See S. Rep. No. 
106 260, at 15 (2000). Consequently, DHS is proposing to provide 
benefits to those H-1B nonimmigrants who have demonstrated an intent to 
permanently contribute to and participate in the U.S. economy and who 
have already made significant strides towards achieving the ability to 
do so upon being granted lawful permanent resident status; 
specifically, those H-1B nonimmigrants with an approved Form I-140 or 
who have been granted status under sections 106(a) and (b) of AC21. DHS 
believes tying the H-4 spouse employment authorization to such H-1B 
nonimmigrants would allow for more accurate identification of H-1B 
nonimmigrants who are on the path to becoming LPRs pursuant to their 
employment, and avoid the encouraging of ``frivolous'' filings. DHS may 
consider expanding H-4 employment authorization eligibility in the 
future.
    DHS estimates that the number of H-4 dependent spouses who would be 
initially eligible to apply for employment authorization under this 
proposed rule would be as many as 100,600 in the first year and 35,900 
initial applications annually in subsequent years.\13\ DHS is unable to 
project an estimate of H-4 spouses that would need to renew in future 
years, because we are unable to determine which H-4 nonimmigrant would 
need to extend their work authorization. The need to extend work 
authorization is an individualistic determination, since it depends on 
where in the immigration process the individual is, which is determined 
in part by the individual's nationality and visa availability. See 
Section VI Regulatory Requirements below. DHS believes that the effect 
of this proposal to expand employment authorization to eligible H-4 
dependent spouses would result in a negligible impact on the U.S. labor 
market given

[[Page 26892]]

the size of the U.S. civilian work force. Furthermore, this proposal is 
simply accelerating the time frame for when these H-4 dependent spouses 
would be eligible to enter the labor market, because they would become 
eligible for employment authorization when an immigrant visa number 
becomes available to the H-1B principal and the H-1B dependent spouse 
files an application for adjustment of status.
---------------------------------------------------------------------------

    \13\ This estimate only includes filers who may obtain work 
authorization for the first time under this proposed rule, and does 
not include H-4 spouses who will subsequently file an application 
for renewal of their employment authorization. The actual number of 
applicants under the proposed regulatory section has the potential 
to increase as the initial employment authorization documents 
expire, and the applicant pool includes first time filers as well as 
renewal filers. There is also no prohibition for H-4 nonimmigrants 
with pending adjustment of status applications to rely on proposed 8 
CFR 274a.12(c)(26) instead of 8 CFR 274a.12(c)(9) as the designated 
category under which they apply for employment authorization, which 
may also increase the number of people filing under the proposed 
regulation, without actually increasing the number of individuals 
authorized to work in the United States.
---------------------------------------------------------------------------

IV. Proposed Changes

    This rule proposes to amend DHS's 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 have an approved Form I-140 employment-based immigrant 
visa petition or have been granted status under sections 106(a) and (b) 
of AC21.

A. Amendments to 8 CFR 214.2(h)(9)(iv)

    Currently, 8 CFR 214.2(h)(9)(iv) provides that neither spouses nor 
children of H nonimmigrants, ``may accept employment unless he or she 
is the beneficiary of an approved petition filed on his or her behalf 
and has been granted a nonimmigrant classification authorizing his or 
her employment.'' To extend eligibility for employment authorization to 
H-4 dependent spouses of H-1B nonimmigrants with an approved Form I-140 
petition or H-4 dependent spouses of H-1B nonimmigrants granted 
extensions of stay under sections 106(a) and (b) of AC21, DHS is 
proposing to amend 8 CFR 214.2(h)(9)(iv) by adding an exception for 
these H-4 spouses. Under this rule, eligible H-4 spouses seeking 
employment authorization under the exception would be required to file 
an Application for Employment Authorization (Form I-765 or successor 
form) and the required fee, with USCIS.
    To obtain H-4-based employment authorization, DHS is proposing in 
this rule that along with filing the Application for Employment 
Authorization, the H-4 dependent spouse also would be required to 
submit documentation establishing either that the H-1B principal has an 
approved Form I-140, or that the H-4 dependent spouse's current H-4 
admission or extension of stay was approved pursuant to the principal 
H-1B nonimmigrant's admission or extension of stay based on section 
106(a) and (b) of AC21. Id. DHS anticipates that such documentary 
evidence could include:
    1. Evidence that the principal H-1B nonimmigrant is the beneficiary 
of an approved Form I-140; or
    2. Evidence that the principal H-1B nonimmigrant's Labor 
Certification Application or I-140 petition has been pending for more 
than 365 days, or evidence that the H-1B principal is the beneficiary 
of an unexpired Labor Certification Application that was filed more 
than 365 days ago, along with copies of documentation showing that the 
principal H-1B nonimmigrant has been in H-1B nonimmigrant status beyond 
6 years (e.g., passport, prior Forms I-94, current and prior Forms I-
797, copies of pay stubs); and
    3. Copy of the H-4 dependent spouse's current approval notice of 
stay or Form I-94 evidencing admission as an H-4 nonimmigrant pursuant 
to the H-1B nonimmigrant's approved extension of stay based on sections 
106(a) and (b) of AC21.
    4. Secondary evidence may be considered in lieu of the evidence 
listed above, such as, but not limited to: an attestation by the H-1B 
nonimmigrant regarding his or her AC21 sections 106(a) and (b)-based 
extension of stay or I-140 petition approval, petition receipt numbers, 
or copies of any relevant petitions or receipt notices.

Rather than naming specific documentary evidence in this rule, DHS has 
determined that it would be more appropriate to allow for flexibility 
in the types of evidence that may be submitted. As a result, DHS is 
proposing a general eligibility standard in the regulatory text under 
the proposed 8 CFR 214.2(h)(9)(iv), and plans to provide examples of 
acceptable documentary evidence, such as that listed above, in the form 
instructions for the Application for Employment Authorization, Form I-
765 (or successor form).
    In addition, DHS's proposed revisions to 8 CFR 214.2(h)(9)(iv) 
include clarifying amendments to the current text. DHS has determined 
that the language in this paragraph providing that spouses and children 
of H-1B nonimmigrants are not authorized to work unless they obtain 
such authorization under a different nonimmigrant classification is 
potentially confusing. DHS is proposing to remove the reference to 
employment authorization under a different nonimmigrant classification. 
H-4 dependents may obtain employment authorization on other bases than 
a different nonimmigrant classification. For example, H-4 dependents 
may qualify for employment authorization as adjustment of status 
applicants. This rule proposes to clarify the text by providing that H-
4 spouses are ineligible for employment authorization on the basis of 
their H-4 nonimmigrant status unless one of the exceptions proposed by 
this rule applies.

B. Amendments to 8 CFR 274a.12(c)

    To conform to the proposed amendments to 8 CFR 214.2(h)(9)(iv), DHS 
also is proposing an amendment to 8 CFR 274a.12(c), which lists classes 
of aliens eligible for employment authorization. This amendment would 
add a new class of employment authorization-eligible aliens: those H-4 
dependent spouses described as eligible for employment authorization in 
proposed 8 CFR 214.2(h)(9)(iv). Specifically, the proposed amendment to 
8 CFR 274a.12 would list a new class of nonimmigrants eligible to apply 
for employment authorization: H-4 nonimmigrant spouses who (1) have 
been admitted or granted extensions of stay and whose H-1B nonimmigrant 
principal spouse is the beneficiary of an approved Form I-140; or (2) 
are in an authorized period of stay pursuant to sections 106(a) and (b) 
of AC21. See proposed 8 CFR 274a.12(c)(26). Therefore, under this 
proposed rule, an H-4 spouse would not be authorized for employment 
until USCIS approves, as a matter of discretion, the Application for 
Employment Authorization and issues an Employment Authorization 
Document (EAD).
    The EAD, currently issued on Form I-766, contains the individual's 
photograph and serves as evidence of employment authorization. The 
period of employment authorization, reflected on the card, would be 
determined at the discretion of USCIS. See proposed 8 CFR 
274a.12(c)(26). Generally, USCIS issues EADs with a one-year validity 
period. DHS has determined that EADs valid for two years may be issued 
in cases where an individual has a pending adjustment application (i.e. 
filed an Application to Register Permanent Resident or Adjust Status, 
Form I-485), but are unable to adjust status because an immigrant visa 
number is not currently available.\14\ USCIS is considering a validity 
period of up to two years for eligible H-4 dependents. This would be 
consistent with the validity period for employment authorization 
extended to E-1/E-2 and L-1 spouses. USCIS could not grant a period of 
employment authorization that exceeds the period of stay. Before 
employment authorization expires, the H-4 dependent would have to apply 
to renew employment authorization if he

[[Page 26893]]

or she remains in an H-4 nonimmigrant status that is eligible for 
employment authorization, find another basis for employment 
authorization, or discontinue working.
---------------------------------------------------------------------------

    \14\ The announcement of USCIS' issuance of two-year EADs is 
available at http://www.uscis.gov/archive/archive-news/uscis-issue-two-year-employment-authorization-documents.
---------------------------------------------------------------------------

    To maintain continuous work authorization, an EAD card holder 
eligible for a renewal EAD may file a new Application for Employment 
Authorization up to 120 days prior to the expiration date of his or her 
current EAD. An EAD renewal may be filed concurrently with a request 
for extension of status.

V. Statutory and Regulatory Requirements

A. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. As a result, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

B. Small Business Regulatory Enforcement Fairness Act of 1996

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

C. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.
    DHS proposes to amend its regulations to allow certain H-4 
dependent spouses to apply for employment authorization. This rule 
proposes to extend the availability of employment authorization only to 
the H-4 spouses of H-1B nonimmigrant workers who have an approved 
Immigrant Petition for Alien Worker, Form I-140, and to H-4 spouses of 
H-1B nonimmigrant workers who have been admitted or granted extensions 
of their stay in the United States under sections 106(a) and (b) of 
AC21.
1. Summary
    Currently, USCIS does not issue work authorization to H-4 dependent 
nonimmigrants. To obtain work authorization, the H-4 dependent 
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 
authorized stay and employment authorization beyond the typical six-
year limit for H-1B nonimmigrants who are seeking permanent residence. 
The proposed rule would offer employment authorization for H-4 spouses 
of H-1B nonimmigrants if the H-4 nonimmigrant is granted an extension 
of stay pursuant to the authorized extension of stay of the H-1B 
nonimmigrant spouse under AC21, or is the spouse of an H-1B 
nonimmigrant who is the beneficiary of an approved Immigrant Petition 
for Alien Worker. DHS estimates the current population of H-4 spouses 
that would be eligible for employment authorization under the proposal 
would initially be 100,600 after taking into account the backlog of 
those with approved or likely to be approved immigrant worker petitions 
but who are unable to adjust. DHS has assumed that those H-4 spouses in 
the backlog population would file for employment authorization in the 
first year of implementation for ease of analysis. DHS estimates the 
flow of new H-4 spouses that would be eligible to apply for initial 
employment authorization in subsequent years to be 35,900 annually. DHS 
is unable to determine the filing volume of H-4 spouses that will need 
to renew their employment authorization documents under this proposal 
as they continue to wait for a visa to become available. Eligible H-4 
spouses who wish to work in the United States must pay the $380 filing 
fee to USCIS, provide two passport-style photos, and incur the 
estimated 3 hour and 25 minute opportunity cost of time burden 
associated with filing an Application for Employment Authorization 
(Form I-765 or successor form). After monetizing the expected 
opportunity cost and combining it with the filing fee \15\ and 
estimated cost to provide two passport-style photos, an eligible H-4 
dependent spouse applying for employment authorization would face a 
total cost of $435.67.
---------------------------------------------------------------------------

    \15\ The filing fee is assumed to be a reasonable approximation 
for the Department's costs of processing the application.
---------------------------------------------------------------------------

    The total maximum anticipated annual cost to H-4 spouses applying 
for initial employment authorization in Year 1 is estimated at 
$43,828,402 (non-discounted), and $15,640,553 (non-discounted) in 
subsequent years. The 10-year discounted cost of this rule to H-4 
spouses applying for employment authorization is $136,196,483 at 7% and 
$160,783,933 at 3%. Table 2 shows the maximum anticipated estimated 
costs expected over a 10-year period of analysis for the estimate of 
100,600 applicants for initial employment authorization, and the 35,900 
applicants expected to file for initial employment authorization 
annually in subsequent years.

 Table 2--Total Costs of Initial Employment Authorization for Certain H-4 Dependent Spouses 10-Yr. Present Value
                                             Estimates at 3% and 7%
                                                   [$Millions]
----------------------------------------------------------------------------------------------------------------
                                                                   Sum of years 2-10
                                           Year 1 estimate         (35,900 applicants       Total over 10-year
                                         (100,600 applicants)          annually)         period of analysis \16\
----------------------------------------------------------------------------------------------------------------
3% Discount Rate:
    Total Costs Incurred by Filers                       $42.6                   $118.2                   $160.8
     @3%.............................

[[Page 26894]]

 
7% Discount Rate:
    Total Costs Incurred by Filers                        41.0                     95.2                    136.2
     @7%.............................
                                      --------------------------------------------------------------------------
Qualitative Benefits.................  This rule is intended to remove the disincentive to pursue the
                                       immigration process due to the potentially long wait for available
                                       employment-based immigrant visas for many H-1B nonimmigrant families.
                                       Also, this rule will encourage H-1B skilled workers who have already
                                       taken steps to become lawful permanent residents to not abandon their
                                       efforts to acquire lawful permanent residence because their H-4 spouse is
                                       unable to work. By encouraging the H-1B workers to continue in their
                                       pursuit of becoming LPRs, this rule would result in minimizing
                                       disruptions to petitioning U.S. employers. Eligible H-4 spouses who
                                       participate in the labor market will benefit financially. We also
                                       anticipate that the socio-economic benefits will assist the family in
                                       more easily integrating into American society.
----------------------------------------------------------------------------------------------------------------

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

    \16\ Total column may not sum due to rounding.
---------------------------------------------------------------------------

2. Purpose of the Proposed Rule
    According to reports prepared by the DHS Office of Immigration 
Statistics, in Fiscal Year (FY) 2012 a total of 1,031,631 persons 
became lawful permanent residents (LPRs) in the United States.\17\ The 
majority of new lawful permanent residents (53 percent) were already 
living in the United States and adjusted status to obtain lawful 
permanent residence. Employment-based immigrant visas accounted for 14 
percent of the total lawful permanent resident flow, and 26 percent of 
total LPRs that adjusted status in FY 2012. In FY 2012, there were a 
total of 143,998 LPRs admitted under employment-based preference visa 
categories. Among those that became LPRs under employment-based 
preference categories in FY 2012, ``priority workers'' (first 
preference or EB-1) accounted for 27 percent; ``professionals with 
advanced degrees'' (second preference or EB-2) accounted for 35 
percent; and ``skilled workers, professionals, and other workers'' 
(third preference or EB-3) accounted for 27 percent.\18\ H-1B 
nonimmigrant workers seeking to adjust status to lawful permanent 
residence would most likely adjust under EB-2 or EB-3 preference 
categories, with a much smaller amount qualifying under EB-1. As of 
April 2014, all 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 seeking 
admission under the third preference category.\19\ The employment-based 
categories under which H-1B workers typically qualify to pursue lawful 
permanent resident status are the very categories that are 
oversubscribed.\20\ In many cases, the timeframe associated with 
seeking lawful permanent residence is lengthy, extending well beyond 
the 6-year period of stay allotted for by the H-1B nonimmigrant visa 
classification. As a result, retention of highly educated and highly 
skilled nonimmigrant workers can be problematic. Retaining highly 
skilled persons who intend to acquire lawful permanent resident status 
is important when considering the contributions of these individuals to 
the U.S. economy, including advances in entrepreneurial and research 
and development endeavors, which are highly correlated with overall 
economic growth and job creation. By some estimates, immigration was 
responsible for one third of the explosive growth in patenting in past 
decades, and these innovations contributed to increasing U.S. GDP by 
2.4 percent.\21\ In addition, over 25 percent of tech companies founded 
in the United States from 1995 to 2005, the chief executive or lead 
technologist was foreign-born.\22\ Likewise, the Kauffman Foundation 
reported that immigrants are more than twice as likely to start a 
business in the United States as the native-born and a report by the 
Partnership for a New American Economy found that more than 40 percent 
of 2010 Fortune 500 companies were founded by immigrants or their 
children.\23\ Additionally, in March 2013, the House Judiciary 
Subcommittee held a hearing on Enhancing American Competitiveness 
Through Skilled Immigration, providing

[[Page 26895]]

several members of the business community 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.\24\
---------------------------------------------------------------------------

    \17\ See DHS Office of Immigration Statistics, Annual Flow 
Report, U.S. Legal Permanent Residents: 2012 (March 2013), available 
at: http://www.dhs.gov/sites/default/files/publications/ois_lpr_fr_2012_2.pdf.
    \18\ Id.
    \19\ See Department of State (DOS) Bureau of Consular Affairs, 
April 2014 Visa Bulletin (March 7, 2014), available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-april-2014.html.
    \20\ See Wadhwa, Vivek, et al., Intellectual Property, the 
Immigration Backlog, and a Reverse Brain-Drain--America's New 
Immigrant Entrepreneurs, Part III, Center for Globalization, 
Governance & Competitiveness (Aug. 2007), available at http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf. Note: The 
report examined the 2003 cohort of employment-based immigrants and 
showed that 36.8 percent of H-1B nonimmigrants that adjust status do 
so through the EB-3 category and another 28 percent do so through 
the EB-2 category, while only 4.62 percent adjust through the EB-1 
category.
    \21\ See National Bureau of Economic Research, ``How Much Does 
Immigration Boost Innovation?'' September 2008, available at: http://www.nber.org/papers/w14312..
    \22\ See Wadhwa, Vivek, et al., Intellectual Property, the 
Immigration Backlog, and a Reverse Brain-Drain--America's New 
Immigrant Entrepreneurs, Part III, Center for Globalization, 
Governance & Competitiveness (Aug. 2007), available at http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf; see also 
Wadhwa, Vivek, et al., ``America's New Immigrant Entrepreneurs.'' 
Report by the Duke School of Engineering and the UC Berkeley School 
of Information (January 4, 2007) available at: http://
people.ischool.berkeley.edu/~anno/Papers/Americas--new--immigrant--
entrepreneurs--I.pdf; 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.
    \23\ See Fairlie, Robert. ``Kauffman Index of Entrepreneurial 
Activity: 1996-2012.'' The Ewing Marion Kauffman Foundation. April, 
2013, available at: http://www.kauffman.org/what-we-do/research/2013/04/kauffman-index-of-entrepreneurial-activity-19962012. 
Partnership for a New American Economy, 2011, The ``New American'' 
Fortune 500, available at: http://www.nyc.gov/html/om/pdf/2011/partnership_for_a_new_american_economy_fortune_500.pdf http://www.renewoureconomy.org/2011_06_15_1.
    \24\ See Enhancing American Competitiveness through Skilled 
Immigration: Hearing before the H. Judiciary Subcomm. On 
Immigration, 113th Cong. 15 (2013), available at http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg79724/pdf/CHRG-113hhrg79724.pdf.
---------------------------------------------------------------------------

    This rule is intended to remove the disincentive to pursue the 
immigration process due to the potentially long wait for available 
immigrant visas for many H-1B nonimmigrant families. Also, this rule 
will encourage those H-1B nonimmigrant workers who have already started 
the process to not abandon their efforts to acquire lawful permanent 
residence because their H-4 dependent spouse is unable to work.
3. Volume Estimate
    Due to current data limitations, we are unable to precisely track 
the population of H-4 dependent spouses tied to H-1B principals who 
have started the immigration process by having an approved Immigrant 
Petition for Alien Worker (Form I-140) petition or who have been 
admitted or granted an extension of their stay 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 that tracks information by the applicant or 
petitioner.
    In an effort to provide a reasonable approximation of the number of 
H-4 dependent spouses who would be eligible for employment 
authorization, we have compared historical immigrant data on persons 
obtaining lawful permanent resident status against employment-based 
immigrant demand estimates. Based on current visa availability, we 
believe that dependent spouses of H-1B nonimmigrants who are seeking 
employment-based visas under the 2nd or 3rd preference categories would 
be the group most impacted by the provisions of this rule. However, our 
estimates of the backlog population indicate there may be some H-1B 
nonimmigrants with an approved Form I-140 that are still seeking 
employment-based visas under the first preference, so this analysis 
will examine this group as well. In addition, in line with the goals of 
this proposal and AC21 and based on immigration statistics, we assume 
that the majority of H-4 spouses who would be eligible for this 
provision are residing in the United States and would seek to acquire 
permanent resident 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 2012, there were a total of 143,998 employment-based immigrant 
visa admissions, of which 126,016 (or 87.5 percent) obtained LPR status 
through adjustment of status.\25\ As such, this analysis will limit the 
focus and presentation of impacts based on the population seeking to 
adjust status to that of an LPR under an employment-based preference 
category.
---------------------------------------------------------------------------

    \25\ See DHS Office of Immigration Statistics, 2012 Yearbook of 
Immigration Statistics, Table 6, available at http://www.dhs.gov/yearbook-immigration-statistics-2012-legal-permanent-residents 
(compare statistics listed under ``Adjustment of Status'' and ``New 
Arrivals''). Note: At the time of drafting, the full FY 12 Yearbook 
of Immigration Statistics was not published; however, DHS OIS had 
released certain sections of the report in advance of publication 
which can be found on the Web site cited.
---------------------------------------------------------------------------

    DHS is proposing to allow spouses of H-1B nonimmigrants who are the 
beneficiaries of an approved Immigrant Petition for Alien Worker (Form 
I-140) and spouses of H-1B nonimmigrants who are extending stay under 
provisions of AC21 to be eligible for work authorization. As mentioned 
in the previous paragraph, we assume the majority of H-4 spouses that 
would be impacted by the proposal would be those that are physically 
present in the United Status and intend to adjust status.
    Since DHS is proposing to extend work authorization to H-4 
dependent spouses tied to H-1B nonimmigrant workers with an approved 
Form I-140, regardless of how long they have been in H-1B status and 
waiting for an employment-based immigrant visa to become available, DHS 
assumes the volume of H-4 dependent spouses newly eligible for 
employment authorization would have two estimates: 1) an immediate, 
first year estimate due to the current backlog of LPR petitions; and 2) 
an annual estimate based on future demand to immigrate under 
employment-sponsored preference categories. The proposal to extend 
eligibility for work authorization to H-4 dependent spouses is 
ultimately tied to the actions taken by the H-1B nonimmigrant worker; 
therefore, the overall volume estimate is based on the population of H-
1B nonimmigrants who have taken steps to acquire lawful permanent 
resident 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 
September 2012. In this analysis, the estimated number of persons 
waiting for the availability of an immigrant visa is referred to as the 
``backlog,'' and includes those with an approved Form I-140 and those 
with a pending Form I-140 that is likely to be approved as of September 
2012.\26\ 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 would be those whose H-1B principal will be seeking to 
adjust status under the second or third preference. However, since 
there are persons with approved or pending Immigrant Petitions for 
Alien Worker (Form I-140) in the first-preference category, and because 
the provisions of AC21 cover these individuals, DHS will include them 
as part of the ``backlog'' estimate.\27\ Additionally, DHS has examined 
detailed characteristics about the LPR population for FY 2008-FY 2011 
to further refine this estimate.\28\

[[Page 26896]]

We have laid out each of our assumptions and methodological steps for 
both the backlog and annual estimates of H-4 dependent spouses who 
would be eligible to apply for employment authorization. Again, the 
estimates are based on the actions and characteristics (e.g. whether 
the H-1B reports being married) of the H-1B principal because the H-4 
dependent spouse's employment eligibility would be tied to the steps 
taken on behalf of the H-1B principal to acquire LPR status under an 
employment-based preference category.
---------------------------------------------------------------------------

    \26\ Source for backlog estimation: USCIS Office of Policy & 
Strategy analysis of data obtained by DHS Office of Immigration 
Statistics. Analysis based on CLAIMS3 data captured in approved 
Immigrant Petition for Alien Worker (Form I-140) and Application to 
Register Permanent Residence or Adjust Status (Form I-485) records.
    \27\ 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 I-140 
petition approval, our data suggests that it takes 12 to 18 months 
on average from the approval of the I-140 petition with current 
priority dates to obtain LPR status. DHS believes this is a natural 
lag time due to choices made by the applicant and is not a result of 
USCIS processing times. Source: https://egov.uscis.gov/cris/processTimesDisplayInit.do. Data reported as of January 31, 2014 
indicate that the processing times for employment-based adjustment 
applications was between 4-6 months. As previously explained in the 
preamble, when an employment-based immigrant visa category is 
undersubscribed and a visa is immediately available, a nonimmigrant 
worker who is a beneficiary of an approved I-140 petition filed 
under that category and his or her dependents are eligible to file 
an application for adjustment of status (currently USCIS Form I-
485). While that application is pending, the spouse is eligible for 
employment authorization.
    \28\ Source: USCIS Office of Policy & Strategy analysis of data 
obtained by 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 2008-11 
periods. Note: DHS only considered detailed data characteristics 
through the period FY 11 because at the time of drafting, detailed 
demographic data for LPRs adjusting in FY 12 data was not yet 
released by the DHS Office of Immigration Statistics.
---------------------------------------------------------------------------

Backlog Estimate
    The estimate of the number of principal individuals with either an 
approved Form I-140 or with a Form I-140 that is likely to be approved 
and 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 only limited to those individuals that 
are currently in H-1B nonimmigrant status. The counts in Table 3 
includes aliens who are currently in H-1B and other nonimmigrant 
statuses, as well as those seeking to immigrate under employment-based 
preferences who are currently abroad. This analysis will use recent LPR 
data as a proxy to refine the estimate of principal workers in the 
backlog that DHS expects to be H-1B nonimmigrants seeking to adjust 
status.

 Table 3--DHS Estimate of Backlog (Principals Only) as of September 2012
------------------------------------------------------------------------
                                                             Principal
                   Preference category                        workers
------------------------------------------------------------------------
EB-1....................................................          10,600
EB-2....................................................          87,200
EB-3....................................................         120,100
------------------------------------------------------------------------

    DHS is unable to determine precisely the number of principal 
workers in the backlog who would be impacted by this proposed rule. 
Instead, DHS examined detailed statistics of those obtaining LPR status 
from FY 2008-2011, and used this information as a proxy to arrive at a 
reasonable approximation of the number of H-4 dependent spouses that 
would be impacted by this rule.\29\ 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 would likely be eligible 
for work authorization under this proposal.
---------------------------------------------------------------------------

    \29\ Id.

 Table 4--Steps Taken To Arrive at the Upper-Bound Estimate of H-4 Spouses of H-1B Nonimmigrants Who Are in the
                                                   ``Backlog''
----------------------------------------------------------------------------------------------------------------
                   Assumption and/or step                         EB-1         EB-2         EB-3        Total
----------------------------------------------------------------------------------------------------------------
(1) Principal Workers in the Backlog (as of September 2012).       10,600       87,200      120,100      217,900
(2) Historical Percentage of Principal Workers who Obtained         95.9%        98.3%        91.5%  ...........
 LPR Status through Adjustment of Status (AOS), average of
 FY 08-FY11 data............................................
(3) Estimated Proportion of the Backlog that DHS Assumes           10,165       85,718      109,892      205,775
 Would Adjust Status (rounded)..............................
(4) Historical Percentage of those that Adjusted Status that        34.4%        31.0%        56.8%  ...........
 were H-1B nonimmigrants, average of FY 08-FY11 data........
(5) DHS Estimated Proportion of the Assumed H-1B                    3,497       26,573       62,419       92,489
 Nonimmigrants Who Adjusted Status (rounded)................
(6) Historical Percentage of H-1B Principal Workers that            79.4%        72.1%        68.5%  ...........
 Adjusted Status that Reported being Married, average of FY
 08-FY11 data...............................................
(7) DHS Estimated Proportion of the Assumed H-1B                    2,777       19,159       42,757       64,693
 Nonimmigrants Who Adjusted Status that Report Being Married
 (rounded)..................................................
(8) Final Estimate of H-1B Nonimmigrants in the Backlog Who   ...........  ...........  ...........       64,700
 would be Impacted by the Proposed Rule (Rounded Up)........
----------------------------------------------------------------------------------------------------------------

    As shown in Table 4, DHS estimates there are approximately 64,700 
H-1B nonimmigrant workers currently in the backlog for an immigrant 
visa under the first through third employment-based preference 
categories. Accordingly, DHS assumes by proxy that there could be as 
many as 64,700 H-4 spouses of H-1B nonimmigrant workers currently in 
the backlog who could be initially eligible for an EAD under this 
proposal. DHS does not have a similar way to parse out the backlog data 
for those classified as ``dependents'' to capture only those that are 
spouses versus children. Likewise, DHS recognizes the limitation of the 
estimated proportion of the backlog that could be impacted by this 
proposed rule since there is no way to further refine this estimate by 
determining the immigration or citizenship status of the spouse of H-1B 
nonimmigrant workers that report being married. For instance, the 
spouse of the H-1B nonimmigrant worker could reside abroad, or could 
himself or herself be a U.S. citizen, LPR, or in another nonimmigrant 
status that confers employment eligibility. Due to the foregoing 
reasons, DHS believes that the estimate of 64,700 represents an upper-
bound estimate of H-4 dependent spouses of H-1B nonimmigrant workers 
currently waiting for an immigrant visa in order to obtain employment-
based LPR status.
Annual Demand Estimate
    The annual demand flow of H-4 dependent spouses who would be 
eligible to apply for initial work authorization under this proposed 
rule is 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; (2) the number of Immigrant Petitions for Alien Worker 
(Forms I-140) pending for more than 365 days where the principal 
beneficiary is currently in H-1B nonimmigrant status; and (3) the 
number of labor certification applications pending with DOL for more 
than 365 days where the principal beneficiary is currently in H-1B 
nonimmigrant status. Section 106 (a)

[[Page 26897]]

and (b) of AC21 allows for extensions of stay for an H-1B nonimmigrant 
who is the beneficiary of a labor certification application or of an 
employment-based immigrant visa petition (Form I-140) that has been 
pending for at least 365 days prior to reaching the end of the sixth 
year of his or her H-1B nonimmigrant status. Permanent labor 
certification applications are adjudicated by the Department of Labor; 
as of January 26, 2014, DOL's processing time for initial applications 
was on average approximately 2 months.\30\ Similarly, average USCIS 
processing times for Form I-140 petitions as of November 30, 2013 was 4 
months.\31\ Nevertheless, petitions can be pending for a number of 
reasons with USCIS for longer than 365 days before a final decision is 
rendered.\32\ The number of Form I-140 petitions where the beneficiary 
has a current nonimmigrant classification of H-1B pending with USCIS 
for more than 365 days is presented in Table 5. Unfortunately, DHS has 
no way of determining how many of the listed totals were pending for at 
least 365 days prior to reaching the end of the sixth year of H-1B 
nonimmigrant status, so the 5-year estimate used in annual projections 
represents an upper-bound estimate.
---------------------------------------------------------------------------

    \30\ Source: DOL Employment & Training Administration's iCert 
Visa Portal System's ``PERM & PW Processing Times'' available at: 
http://icert.doleta.gov/. Data reported as of January 26, 2014, 
indicated that analyst were currently adjudicating labor 
certification applications with a priority date of November 2013. 
Note: This Web site's processing times are updated continuously.
    \31\ Source: ``USCIS Processing Time Information'' for the Texas 
Service Center and Nebraska Service Center for Form I-140 available 
at: https://egov.uscis.gov/cris/processTimesDisplay.do. Data 
reported as of January 31, 2014 indicated that the processing 
timeframes for I-140 petitions was between 4-5 months. Note: The Web 
site informing the public of the USCIS processing times is updated 
continuously.
    \32\ For example, petitions could be pending beyond one year 
because USCIS issued a request for evidence or the petition is 
undergoing additional investigations.
    \33\ Source for approval and pending counts: USCIS Office of 
Performance and Quality, Data and Analysis Reporting Branch (DARB). 
``Approval'' and ``Pending'' petition counts reported by DARB after 
querying the CIS Consolidated Operational Repository System. Source 
for 5-year average: author's calculation.

  Table 5--Forms I-140 Filed on Behalf of H-1B Nonimmigrants, Number of Approved and Number Pending for Greater
                                               Than 365 Days \33\
----------------------------------------------------------------------------------------------------------------
             Fiscal year                       Approved            Pending >365 days              Total
----------------------------------------------------------------------------------------------------------------
2008.................................                   41,513                    7,893                   49,406
2009.................................                   26,860                    1,035                   27,895
2010.................................                   48,511                    1,764                   50,275
2011.................................                   54,363                    2,033                   56,396
2012.................................                   45,732                      592                   46,324
                                      --------------------------------------------------------------------------
    5-Year Average...................                   43,396                    2,663                   46,059
----------------------------------------------------------------------------------------------------------------

    The number of labor certifications where the beneficiary has a 
current nonimmigrant classification of H-1B pending with DOL for more 
than 365 days is presented in Table 6.

                     Table 6--Labor Certification Applications for H-1B Beneficiaries, Number Pending for Greater Than 365 Days \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 FY of adjudication                          Certified                  Denied                 Withdrawn                  Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2008................................................                      292                      139                      101                      532
2009................................................                    1,388                      632                      215                    2,235
2010................................................                    3,697                    1,719                      480                    5,896
2011................................................                    3,197                    1,947                      351                    5,495
2012................................................                      130                      137                       30                      297
                                                     ---------------------------------------------------------------------------------------------------
    5-Year Average..................................                    1,741                      915                      235                    2,891
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Over FY 2008-2012, DOL adjudicated an average of 2,891 labor 
certification applications that were pending for over 365 days where 
the beneficiary is currently in H-1B status. Again, neither DHS nor DOL 
has any way of determining how many of the listed totals were pending 
for at least 365 days prior to reaching the end of the sixth year of H-
1B nonimmigrant status, so the calculated average of DOL applications 
in Table 6 represents an upper-bound estimate. Thus, the baseline 
average projection we will use for purposes of this analysis is 
48,950.\35\
---------------------------------------------------------------------------

    \34\ Source: USDOL Employment and Training Administration Office 
of Foreign Labor Certification. Source for 5-year average: author's 
calculation.
    \35\ Calculation: 46,059 (calculated annual average for DHS in 
Table 5) + 2,891 (calculated annual average for DOL in Table 6) = 
48,950.
---------------------------------------------------------------------------

    To refine the future annual projection estimates, DHS has chosen to 
estimate the proportion of Immigrant Petitions for Alien Worker (Forms 
I-140) and labor certification applications filed in the first through 
third employment-based preference categories. As previously discussed, 
first preference employment-based category and certain second 
preference employment-based categories (all those except for 
beneficiaries that are chargeable as nationals of China or India) are 
not currently oversubscribed. Although individuals in such categories 
are immediately eligible to file an application to adjust status, which 
provides eligibility to apply for employment authorization while the 
adjustment application is pending, because of the time lag between when 
an I-140 petition is approved and obtaining LPR status, we choose to 
include these preference categories in our annual flow estimates. 
Additionally, since DHS has already limited the historical counts in 
Table 5 to those Form I-140s filed where the beneficiary's current 
nonimmigrant category is H-1B, DHS has made the

[[Page 26898]]

assumption that the petitions shown in Tables 5 and 6 represent H-1B 
nonimmigrant workers 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 that reported being married was 79.4 percent, 72.1 
percent, and 68.5 percent, respectively, resulting in an average of 
73.3 percent. Applying this percentage to the baseline average 
calculated earlier of Form I-140 petitions filed that were approved or 
pending for more than 365 days and labor certification applications 
that were pending for more than 365 days, results in an annual flow 
estimate of 35,900 (rounded).\36\ Again, for the same reasons discussed 
previously, this is an upper-bound estimate of H-4 dependent spouses 
who could be eligible to apply for employment authorization under the 
proposed rule.
---------------------------------------------------------------------------

    \36\ Calculation: 48,950 x 73.3 percent = 35,880.35 or 35,900 
rounded to the nearest hundred.
---------------------------------------------------------------------------

    Therefore, DHS estimates that this proposed rule, if finalized, 
would result in a maximum initial estimate of 100,600 \37\ H-4 
dependent spouses who would be newly eligible to apply for employment 
authorization in the first year of implementation, and an annual flow 
of as many as 35,900 that are newly eligible in subsequent years.
---------------------------------------------------------------------------

    \37\ Calculation: Backlog of 64,700 plus annual demand estimate 
for married H-1Bs of 35,900.
---------------------------------------------------------------------------

4. Costs
Filer Costs
    The proposed amendment would 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 would face the costs 
associated with obtaining employment authorization. The costs of the 
rule would stem from filing fees and the opportunity costs of time 
associated with filing an Application for Employment Authorization 
(Form I-765 or successor form).
    The current filing fee for the Application for Employment 
Authorization (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.\38\ USCIS estimates the time 
burden of completing this application to be 3 hours and 25 minutes. We 
recognize 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. We chose to use the minimum wage to 
estimate the opportunity cost consistent with methodology employed in 
other USCIS rulemakings when estimating time burden costs for those who 
are not work authorized.
---------------------------------------------------------------------------

    \38\ 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 January 28, 2014.
---------------------------------------------------------------------------

    The Federal minimum wage is currently $7.25 per hour.\39\ In order 
to anticipate the full opportunity cost to petitioners, we multiplied 
the average hourly U.S. wage rate by 1.44 to account for the full cost 
of employee benefits such as paid leave, insurance, and retirement for 
a total of $10.44 per hour.\40\ H-4 dependent spouses who decide to 
file an Application for Employment Authorization (Form I-765 or 
successor form) would face an opportunity cost of time $35.67 per 
applicant.\41\ Combining the opportunity costs with the fee--and 
estimated passport-style photo costs, the total cost per application 
would be $435.67. In the first year of implementation, we estimate the 
total maximum cost to H-4 spouses that could be eligible to file for an 
initial employment authorization would be a much as $43,828,402 (non-
discounted) and $15,640,553, annually in subsequent years. The 10-year 
discounted cost of this rule to filers of initial employment 
authorizations is $136,196,483 at 7%, while the 10-year discounted cost 
to filers is $160,783,933 at 3%. Importantly, in future years the 
applicant pool of H-4 spouses filing for employment authorization will 
include both those initially eligible and those that will seek to renew 
their EAD as they continue to wait for a visa to become available. DHS 
could not project the number of renewals since the volume of H-4 
spouses that would need to renew is dependent upon visa availability 
dates, which differ based on the preference category and the country of 
nationality. We welcome public comment on methods to estimate renewals 
given the lack of information needed to reasonably project the volume 
of H-4 spouses that would need to renew their employment authorization 
in future years. H-4 spouses needing to renew an EAD under the proposed 
provisions would face a per application cost of $435.67.
---------------------------------------------------------------------------

    \39\ U.S. Dep't of Labor, Wage and Hour Division. The minimum 
wage in effect as of July 24, 2009, available at: http://www.dol.gov/dol/topic/wages/minimumwage.htm.
    \40\ The calculation to burden the wage rate: $7.25 x 1.44 = 
$10.44 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 (December 2012), available at http://www.bls.gov/news.release/archives/ecec_03122013.htm (viewed April 16, 2013).
    \41\ Calculation for opportunity cost of time: $10.44 per hour x 
3.4167 hours (net form completion time) = $35.67.
---------------------------------------------------------------------------

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). USCIS has established the fee for the 
adjudication of Applications for Employment Authorization (Form I-765 
or successor form) in accordance with this requirement. As such, there 
are no additional costs to the Federal Government resulting from this 
proposed rule.
Impact on States
    Currently, once a visa is available, H-1B nonimmigrants and their 
dependent family members are able 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, if finalized, often would 
significantly accelerate the timeframe by which qualified H-4 dependent 
spouses are eligible to enter the U.S. labor market since they would be 
eligible to request employment authorization well before they are 
eligible to apply for adjustment of status. DHS believes this proposal 
may 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. As such, DHS is presenting 
the geographical labor impact of this DHS proposal without factoring in 
the fact that these individuals would have been employment eligible at 
some point in the future. As mentioned previously, DHS estimates this 
rule could add as many as 100,600 additional persons to the U.S. labor 
force in the first year of implementation, and then as many as 35,900 
additional persons annually in subsequent years. As of 2013, there were 
an estimated 155,389,000 people in the

[[Page 26899]]

U.S. civilian labor force.\42\ Consequently, 100,600 additional 
available workers in the first year represents a fraction of a percent, 
0.065%, of the overall U.S. civilian labor force (100,600/155,389,000 x 
100 = 0.0647%).
---------------------------------------------------------------------------

    \42\ See News Release, United States Dep't of Labor, Bureau of 
Labor Statistics, Local Area Unemployment Statistics, Regional and 
State Unemployment--2013 Annual Averages, Table 1 ``Employment 
status of the civilian noninstitutional population 16 years of age 
and over by region, division, and state, 2012-13 annual averages'' 
(February 28, 2014), available at http://www.bls.gov/news.release/archives/srgune_02282014.pdf.
---------------------------------------------------------------------------

    The top five States where persons granted lawful permanent resident 
status choose to reside have been: California (20 percent), New York 
(14 percent), Florida (11 percent), Texas (9 percent), and New Jersey 
(5 percent).\43\ While allowing certain H-4 dependent spouses the 
opportunity to work would result in a negligible increase to the 
overall domestic labor force, 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 2008-2012, and assuming the estimate for 
first year impacts of 100,600 additional workers were distributed 
following the same patterns, we would anticipate the following results: 
California would receive approximately 20,120 additional workers in the 
first year of implementation; New York would receive approximately 
14,084 additional workers; Florida would receive approximately 11,066 
additional workers; Texas would receive approximately 9,054 additional 
workers; and New Jersey would receive approximately 5,030 additional 
workers. To provide context, California had 18,597,000 persons in the 
civilian labor force in 2013.\44\ The additional 20,120 workers who 
could be added to the Californian labor force as a result of this rule 
in the first year would represent one-tenth of a percent of that 
state's labor force (20,120/18,597,000 x 100 = 0.1082%).
---------------------------------------------------------------------------

    \43\ DHS Office of Immigration Statistics, Annual Flow Reports, 
``U.S. Legal Permanent Residents'' for 2008-2012, available at: 
http://www.dhs.gov/publications-0#0. Author calculated percentage 
distributions by State weighted over FY 2008-2012 (rounded).
    \44\ See News Release, U.S. Dep't of Labor, Bureau of Labor 
Statistics, Local Area Unemployment Statistics, Regional and State 
Unemployment-2013 Annual Averages, Table 1, Employment status of the 
civilian noninstitutional population 16 years of age and over by 
region, division, and state, 2012-13 annual averages (Feb. 28, 
2014), available at: http://www.bls.gov/news.release/archives/srgune_02282014.pdf.
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5. Benefits
    As previously mentioned, assuming this rule is finalized, these 
amendments would increase incentives of certain H-1B nonimmigrant 
workers who have begun the process of becoming lawful permanent 
residents to remain in 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 would further incentivize principal H-1B nonimmigrants to not 
abandon their intention to remain in the United States while pursuing 
lawful permanent resident status. Retaining highly skilled persons who 
intend to become lawful permanent residents is important when 
considering the contributions of these individuals to the U.S. economy, 
including advances in entrepreneurial and research and development 
endeavors. As previously discussed, much research has been done to show 
the positive impacts on economic growth and job creation from high-
skilled immigrants. In addition, the proposed amendments would bring 
U.S. immigration laws more in line with 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.\45\ 
As another example, in Australia, certain temporary work visas allow 
spousal employment.\46\
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    \45\ See Canadian Government, Citizenship and Immigration 
Canada, Help Centre under Topic ``Work Permit--Can my spouse or 
common-law partner work in Canada?'', available at http://www.cic.gc.ca/english/helpcentre/index-featured-can.asp#tab1 (last 
visited May 28, 2013).
    \46\ Australian Government, Dep't of Immigration and 
Citizenship, Employer Sponsored Workers, available at http://www.immi.gov.au/skilled/specialist-entry/visa-options.htm.
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    The proposal would result in direct, tangible benefits for the 
spouses that would be eligible to enter the labor market earlier than 
they would have otherwise been able to due to lack of visa 
availability. While there would be obvious financial benefits to the H-
4 spouse and the H-1B nonimmigrant's family, there is also evidence 
that participating in the U.S. workforce and making gains in socio-
economic attainment has a high correlation with smoothing an 
immigrant's integration into American culture and communities.\47\
---------------------------------------------------------------------------

    \47\ See Jimen[eacute]z, Tom[aacute]s. 2011. Immigrants in the 
United States: How Well Are They Integrating into Society? 
Washington, DC: Migration Policy Institute, available at: http://www.migrationpolicy.org/research/immigrants-united-states-how-well-are-they-integrating-society; see also Terrazas, Aaron. 2011. The 
Economic Integration of Immigrants in the United States: Long- and 
Short-Term Perspectives. Washington, DC: Migration Policy Institute, 
available at: http://www.migrationpolicy.org/research/economic-integration-immigrants-united-states.
---------------------------------------------------------------------------

    Ultimately, the provisions in the proposed rule represent an 
interim convenience for certain H-4 dependent spouses who would 
otherwise not be allowed to work for up to many years until an 
immigrant visa became available, at which point they would be able to 
apply for employment authorization based on their application for 
adjustment of status. DHS welcomes public comment on whether this rule, 
by increasing the likelihood that an H-1B worker does not abandon the 
LPR process, provides an incentive to employers to begin the employment 
sponsorship process of an H-1B worker. In addition, DHS requests 
comments on other benefits of the rule to H-4 spouses, H-1B 
nonimmigrant familes seeking lawful permanent residence, and U.S. 
employers that have not been discussed.
6. Alternatives Considered
    In addition to increasing the potential of retaining highly trained 
and skilled contributors to the U.S. economy, a concurrent goal of the 
proposed rule is to bolster U.S. competitiveness with regard to other 
countries that are principal users of skilled foreign workers. 
Benchmarking against other top immigrant receiving countries shows that 
many allow more liberal work authorization for spouses of principal 
nonimmigrant skilled workers.
    One alternative considered by DHS was to permit employer 
authorization for all H-4 dependent spouses. As explained previously in 
Section III (C), DHS rejected that alternative. In enacting AC21, 
Congress was especially concerned with avoiding the disruption to U.S. 
businesses caused by the required departure of H-1B nonimmigrant 
workers (for whom the businesses intended to file employment-based 
immigrant visa petitions) upon the expiration of workers' maximum six-
year period of authorized stay. See S. Rep. No. 106-260, at 15 (2000). 
DHS rejected this alternative as overbroad, since 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.
    Another alternative considered was to limit employment eligibility 
to just those H-4 spouses of H-1B principal

[[Page 26900]]

nonimmigrants who extended their stay under the provisions of AC21. DHS 
estimates of this population are even less precise because DHS 
databases do not electronically track who is extending their stay under 
the provisions of AC21. DHS estimates the annual flow of those H-1B 
nonimmigrants who have a Form I-140 pending beyond 365 days with USCIS 
would be as many as 2,700. Based on the figures obtained from DOL, we 
estimate there could be an annual average of as many as 2,900 labor 
certification applications pending with DOL beyond 365 days. In 
addition, DHS estimates there could be approximately 7,000 persons 
annually that would be eligible under section 104 of 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 is extending under AC21. However, DHS believes that 
this alternative is too limiting and fails to recognize that other H-4 
spouses also experience long waiting periods while on the path to 
lawful permanent residence.

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). DHS has considered the impact of this rule 
on small entities as defined by the RFA and 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. This rule proposes a revision to the Application 
for Employment Authorization (Form I-765), OMB Control Number 1615-
0040.
    USCIS is requesting comments on this information collection until 
July 11, 2014. When submitting comments on this information collection, 
your comments should address one or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the agency, including whether the information 
will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of the information on 
those who are to respond, including through the use of any and all 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
    Overview of this information collection:
    (1) Type of Information Collection: Revision of a currently 
approved information collection.
    (2) Title of the Form/Collection: Application for Employment 
Authorization; Form I-765 Work Sheet.
    (3) Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: Form I-765; 
Form I-765WS. U.S. Citizenship and Immigration Services.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Individuals or households. This form 
was developed for individual aliens to request employment authorization 
and evidence of that employment authorization. The form is being 
amended to add a new class of aliens eligible to apply for employment 
authorization: H-4 dependent spouses of H-1B nonimmigrants if the H-1B 
nonimmigrants are either the beneficiaries of an approved Immigrant 
Petition for Alien Worker or have been granted an extension of their 
authorized period of admission in the United States under sections 
106(a) and (b) of the American Competitiveness in the Twenty-first 
Century Act of 2000 (AC21), as amended by the 21st Century Department 
of Justice Appropriations Authorization Act. Supporting documentation 
demonstrating eligibility must be filed with the application. The form 
lists examples of relevant documentation.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond:
     1,891,823 responses related to Form I-765 at 3.42 hours 
per response;
     594,602 responses related to Form I-765WS at .50 hours per 
response;
     594,602 responses related to Biometrics services at 1.17 
hours; and
     1,891,823 responses related to Passport-Style Photographs 
at .50 hours per response.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: 8,408,932 total annual burden hours. This figure 
was derived by:
     Multiplying the number of Form I-765 respondents 
(1,891,823) x frequency of response (1) x 3.42 hours per response; plus
     Multiplying the number of Form I-765WS respondents 
(594,602) x frequency of response (1) x .50 hours; plus
     Multiplying the number of respondents from whom USCIS 
collects biometrics (594,602) x frequency of response (1) x 1.17 hours; 
plus
     Multiplying the number of respondents that provide 
Passport-Style Photographs (1,891,823) at .50 hours.
    All comments and suggestions or questions regarding additional 
information should be directed to the Department of Homeland Security, 
U.S. Citizenship and Immigration Services, Chief Regulatory 
Coordinator, Regulatory Coordination Division, Office of Policy and 
Strategy, 20 Massachusetts Avenue NW., Washington, DC 20529.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment,

[[Page 26901]]

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 is proposing to amend chapter I of title 8 of the 
Code of Federal Regulations as follows:

PART 214--NONIMMIGRANT CLASSES

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

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

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


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

* * * * *
    (h) * * *
    (9) * * *
    (iv) H-4 dependents. The spouse and children of an H nonimmigrant, 
if they are accompanying or following to join such H nonimmigrant in 
the United States, may be admitted, if otherwise admissible, as H-4 
nonimmigrants for the same period of admission or extension as the 
principal spouse or parent. H-4 nonimmigrant status does not confer 
eligibility for employment authorization incident to status. An H-4 
nonimmigrant spouse of an H-1B nonimmigrant may be eligible for 
employment authorization only if the H-1B nonimmigrant is the 
beneficiary of an approved Immigrant Petition for Alien Worker, or 
successor form, or the H-1B nonimmigrant's period of stay in H-1B 
status in the United States is authorized under sections 106(a) and (b) 
of the American Competitiveness in the Twenty-first Century Act 2000 
(AC21), Pub. L. 106-313, as amended by the 21st Century Department of 
Justice Appropriations Authorization Act, Public Law 107-273. 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. Such 
Application for Employment Authorization must be accompanied by 
documentary evidence establishing eligibility, including evidence 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 
maintaining H-1B status, and the H-4 nonimmigrant spouse has been 
admitted to the United States as an H-4 nonimmigrant or granted an 
extension of H-4 status on that basis.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

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

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


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

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

Jeh Charles Johnson,
Secretary.
[FR Doc. 2014-10734 Filed 5-9-14; 8:45 am]
BILLING CODE 9111-97-P