There has been a lot of excitement over DHS's February 25 announcement that some H-4 spouses of H-1B employees will be eligible to apply for work authorization. See the DHS's 74-page rule and explanation in the Federal Register for the above date:

But the euphoria over the announcement that at least some spouses of H-1B workers will also be able to work, just as spouses of workers in other skilled/professional non-immigrant categories such as L-1, E-1 and E-2 are already allowed to do, needs to be tempered by the fact that the new H-4 work permit will be limited to H-4 spouses of H-1B workers who are being sponsored by their employers for green cards and are already well along the way in that process.

Generally, but with some exceptions, eligibility for H-4 work permission under the new DHS policy will track eligibility for H-1B extension beyond the initial six years under Sections 104 and 106 of the American Competitiveness in the 21st Century Act (AC21).

If the H-1B principal is not being sponsored for a green card, or is still in the earlier stages of such sponsorship, the H-4 spouse will not benefit from the new work authorization policy and will not be allowed to work unless he/she is eligible for a work visa in his/her own right, as at present.

Exactly who is covered by the new rule? Under Section 104 (as interpreted by USCIS from the beginning) in order to be eligible for an extension beyond the initial six years, the H-1B worker must meet two requirements:

First, he/she must be the beneficiary of an approved I-140. Second, he/she must not have a current immigrant visa priority date available due to quota backlogs.

The new rule for H-4 work permission does not include this second requirement. Therefore any H-4 spouse of a principal H-1B worker who is the beneficiary of an approved I-140 will be eligible to apply for work permission under the new DHS rule, regardless of whether the H-1B principal is eligible to adjust status immediately or whether he/she has a quota waiting period.

At first, this might seem somewhat generous, since it means that the H-4 spouse will now be able to apply for work permission even when the principal is not eligible for an H-1B extension beyond six years.

But in the above situation, both the H-1B and H-4 spouses will be able to apply for adjustment of status (and, of course, work permission) on the basis of the principal's approved I-140 and current priority date. Therefore, it is questionable whether allowing the derivative spouse to apply for H-4 work permission in addition to, or as an alternative to, the work permission already available through filing for adjustment of status (I-485) is a meaningful benefit at all.

With regard to the other relevant section of AC 21, Section 106, the derivative spouse's eligibility for H-4 work permission also differs in one respect from the principal spouse's eligibility for H-1B extension beyond six years under this section.

Under AC21 Section 106, the principal spouse is eligible to extend his/her H-1B beyond six years as long as either a labor certification or an I-140 on his behalf has been filed and been pending for more than one year. However, under DHS's new H-4 work permission rule, the derivative spouse does not become eligible for work permission pursuant to Section 106 unless the principal H-1B visa holder has not only become eligible to extend his/her H-1B status beyond six years, but has in fact applied for and been approved for such an extension.

Why this extra step is required in order for the H-4 spouse to become eligible for employment authorization is something that DHS attempts to justify in its above explanation of the H-4 work permission rule. Whether it does so convincingly or not is will be discussed in Part 2 of this comment.

Part 2 of will also look into a more basic question, which is why DHS chose not to make work permission available to all H-4 visa holders, but only to those whose H-1B spouses are well along the way in the process of becoming eligible to adjust status to permanent resident. I will discuss whether there is any valid reason for limiting H-4 work permission in this way.

If H-1B principal visa holders who are being sponsored for green cards might suffer financial hardship and be discouraged from remaining in the US if their spouses are not allowed to work, would not the same also be true for many H-1B holders who are not being sponsored for green cards? Does America not also have an interest in encouraging these skilled workers to remain in the US too?

To be continued in Part 2.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School who has been representing H-1B and other skilled and professional immigrants for more than 30 years.

Roger believes that immigration lawyers have a mission, and great opportunity, to use our legal knowledge and training in order to make it possible for people from all over the world to benefit American society through their skills, effort and dedication. His email address is