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  • News: USCIS Final Rule on Employment Authorization for Certain H-4 Dependent Spouses

    [Federal Register Volume 80, Number 37 (Wednesday, February 25, 2015)]
    [Rules and Regulations]
    [Pages 10283-10312]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2015-04042]
    
    
    
    [[Page 10283]]
    
    Vol. 80
    
    Wednesday,
    
    No. 37
    
    February 25, 2015
    
    Part IV
    
    
    
    
    
    Department of Homeland Security
    
    
    
    
    
    -----------------------------------------------------------------------
    
    
    
    
    
    8 CFR Parts 214 and 274a
    
    
    
    
    
     Employment Authorization for Certain H-4 Dependent Spouses; Final Rule
    
    Federal Register / Vol. 80 , No. 37 / Wednesday, February 25, 2015 / 
    Rules and Regulations
    
    [[Page 10284]]
    
    
    -----------------------------------------------------------------------
    
    DEPARTMENT OF HOMELAND SECURITY
    
    8 CFR Parts 214 and 274a
    
    [CIS No. 2501-10; DHS Docket No. USCIS-2010-0017]
    RIN 1615-AB92
    
    
    Employment Authorization for Certain H-4 Dependent Spouses
    
    AGENCY: U.S. Citizenship and Immigration Services, Department of 
    Homeland Security.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This final rule amends Department of Homeland Security 
    (``DHS'' or ``Department'') regulations by extending eligibility for 
    employment authorization to certain H-4 dependent spouses of H-1B 
    nonimmigrants who are seeking employment-based lawful permanent 
    resident (``LPR'') status. Such H-1B nonimmigrants must be the 
    principal beneficiaries of an approved Immigrant Petition for Alien 
    Worker (Form I-140), or have been granted H-1B status in the United 
    States under the American Competitiveness in the Twenty-first Century 
    Act of 2000, as amended by the 21st Century Department of Justice 
    Appropriations Authorization Act. DHS anticipates that this regulatory 
    change will reduce personal and economic burdens faced by H-1B 
    nonimmigrants and eligible H-4 dependent spouses during the transition 
    from nonimmigrant to LPR status. The final rule will also support the 
    goals of attracting and retaining highly skilled foreign workers and 
    minimizing the disruption to U.S. businesses resulting from H-1B 
    nonimmigrants who choose not to pursue LPR status in the United States. 
    By providing the possibility of employment authorization to certain H-4 
    dependent spouses, the rule will ameliorate certain disincentives for 
    talented H-1B nonimmigrants to permanently remain in the United States 
    and continue contributing to the U.S. economy as LPRs. This is an 
    important goal considering the contributions such individuals make to 
    entrepreneurship and research and development, which are highly 
    correlated with overall economic growth and job creation. The rule also 
    will bring U.S. immigration policies concerning this class of highly 
    skilled workers more in line with those of other countries that are 
    also competing to attract and retain similar highly skilled workers.
    
    DATES: This final rule is effective May 26, 2015.
    
    FOR FURTHER INFORMATION CONTACT: Jennifer Oppenheim, Adjudications 
    Officer, Office of Policy and Strategy, U.S. Citizenship and 
    Immigration Services, Department of Homeland Security, 20 Massachusetts 
    Avenue NW., Suite 1100, Washington, DC 20529-2140; Telephone (202) 272-
    1470.
    
    SUPPLEMENTARY INFORMATION: 
    
    Table of Contents
    
    I. Executive Summary
        A. Purpose of the Regulatory Action
        B. Legal Authority
        C. Summary of the Major Provisions of the Regulatory Action
        D. Summary of Costs and Benefits
        E. Effective Date
    II. Background
        A. Current Framework
        B. Proposed Rule
        C. Final Rule
    III. Public Comments on Proposed Rule
        A. Summary of Public Comments
        B. Classes Eligible for Employment Authorization
        1. Comments Supporting the Rule
        2. Comments Requesting Expansion of the Rule
        3. Comments Opposing the Rule
        4. Comments Requesting a More Restrictive Policy
        C. Legal Authority To Extend Employment Authorization to Certain 
    H-4 Dependent Spouses
        D. Comments on the Analysis of Executive Orders 12866 and 13653
        1. Comments Related to Labor Market Impacts
        2. Comments on the Volume Estimate and Methodology
        3. Comments on Specific Costs and Benefits Discussed in the 
    Analysis
        E. Comments on the Application for Employment Authorization
        1. Streamlined or Modernized Filing Procedures
        2. Employment Authorization Document (Form I-766) Validity 
    Period
        3. EAD Renewals
        4. Acceptable Evidentiary Documentation
        5. Concurrent Filings
        6. Premium Processing
        7. Automatic Extensions of Work Authorization
        8. Filing Fees
        9. Possible Restrictions on EADs Issued to H-4 Dependent Spouses
        10. Circular EADs
        11. Form I-765 Worksheets
        12. Other Related Issues
        F. Fraud and Public Safety Concerns
        1. Falsifying Credentials and Marriage Fraud
        2. Prohibition Related to Felony Charges and Convictions
        3. Unauthorized Employment
        4. Employer Abuse of H-1B Nonimmigrants and H-4 Dependent 
    Spouses
        G. General Comments
        H. Modifications to the H-1B Program and Immigrant Visa 
    Processing
        1. H-1B Visa Program
        2. Immigrant Visa Processing and Adjustment of Status
        I. H-1B Nonimmigrant's Maintenance of Status
        J. Environmental Issues
        K. Reporting
        L. Implementation
    IV. Statutory and Regulatory Requirements
        A. Unfunded Mandates Reform Act of 1995
        B. Small Business Regulatory Enforcement Fairness Act of 1996
        C. Executive Orders 12866 and 13563
        1. Summary
        2. Purpose of the Rule
        3. Volume Estimate
        4. Costs
        5. Benefits
        6. Alternatives Considered
        D. Regulatory Flexibility Act
        E. Executive Order 13132
        F. Executive Order 12988
        G. Paperwork Reduction Act
    V. Regulatory Amendments
    
    I. Executive Summary
    
    A. Purpose of the Regulatory Action
    
        DHS does not currently extend eligibility for employment 
    authorization to H-4 dependents (spouses and unmarried children under 
    21 years of age) of H-1B nonimmigrants. See 8 CFR 214.2(h)(9)(iv). The 
    lack of employment authorization for H-4 dependent spouses often gives 
    rise to personal and economic hardships for the families of H-1B 
    nonimmigrants. Such hardships may increase the longer these families 
    remain in the United States. In many cases, H-1B nonimmigrants and 
    their families who wish to acquire LPR status in the United States must 
    wait many years for employment-based immigrant visas to become 
    available. These waiting periods increase the disincentives for H-1B 
    nonimmigrants to pursue LPR status and thus increase the difficulties 
    that U.S. employers have in retaining highly educated and highly 
    skilled nonimmigrant workers. These difficulties can be particularly 
    acute in cases where an H-1B nonimmigrant's family is experiencing 
    economic strain or other stresses resulting from the H-4 dependent 
    spouse's inability to seek employment in the United States. Retaining 
    highly skilled workers who intend to acquire LPR status is important to 
    U.S. businesses and to the Nation given the contributions of these 
    individuals to U.S. businesses and the U.S. economy. These individuals, 
    for example, contribute to advances in entrepreneurship and research 
    and development, which are highly correlated with overall economic 
    growth and job creation.
        In this final rule, DHS is amending its regulations to extend 
    eligibility for employment authorization to certain H-4 dependent 
    spouses of H-1B nonimmigrants to support the retention
    
    [[Page 10285]]
    
    of highly skilled workers who are on the path to lawful permanent 
    residence. DHS expects this change to reduce the economic burdens and 
    personal stresses that H-1B nonimmigrants and their families may 
    experience during the transition from nonimmigrant to LPR status while, 
    at the same time, facilitating their integration into American society. 
    As such, the change will ameliorate certain disincentives that 
    currently lead H-1B nonimmigrants to abandon efforts to remain in the 
    United States while seeking LPR status, thereby minimizing disruptions 
    to U.S. businesses employing such workers. The change will also support 
    the U.S. economy, as the contributions H-1B nonimmigrants make to 
    entrepreneurship and research and development are expected to assist 
    overall economic growth and job creation. The rule also will bring U.S. 
    immigration policies concerning this class of highly skilled workers 
    more in line with those of other countries that compete to attract 
    similar highly skilled workers.
    
    B. Legal Authority
    
        The authority of the Secretary of Homeland Security (Secretary) for 
    this regulatory amendment can be found in section 102 of the Homeland 
    Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, 
    and section 103(a) of the Immigration and Nationality Act (INA), 8 
    U.S.C. 1103(a), which authorize the Secretary to administer and enforce 
    the immigration and nationality laws. In addition, section 
    274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the 
    Secretary's authority to extend employment to noncitizens in the United 
    States.
    
    C. Summary of the Major Provisions of This Regulatory Action
    
        On May 12, 2014, DHS published a notice of proposed rulemaking, 
    which proposed to amend DHS regulations at 8 CFR 214.2(h)(9)(iv) and 
    274a.12(c) to extend eligibility for employment authorization to H-4 
    dependent spouses of H-1B nonimmigrants if the H-1B nonimmigrants 
    either: (1) Are the principal beneficiaries of an approved Immigrant 
    Petition for Alien Worker (Form I-140); or (2) have been granted H-1B 
    status pursuant to sections 106(a) and (b) of the American 
    Competitiveness in the Twenty-first Century Act of 2000, Public Law 
    107-273, 116 Stat. 1758, as amended by the 21st Century Department of 
    Justice Appropriations Act, Public Law 107-273, 116 Stat. 1758 (2002) 
    (collectively referred to as ``AC21''). See Employment Authorization 
    for Certain H-4 Dependent Spouses, 79 FR 26886 (May 12, 2014). After 
    careful consideration of public comments, DHS is adopting the proposed 
    regulatory amendments with minor wording changes to improve clarity and 
    readability.\1\ Also, DHS is making additional revisions to 8 CFR 
    214.2(h)(9)(iv) and 8 CFR 274a.13(d) to permit H-4 dependent spouses 
    under this rule to concurrently file an Application for Employment 
    Authorization (Form I-765) with an Application to Extend/Change 
    Nonimmigrant Status (Form I-539).
    ---------------------------------------------------------------------------
    
        \1\ In this final rule, DHS has amended its estimate of the 
    volume of individuals who may become eligible to apply for 
    employment authorization pursuant to this rulemaking. The impact on 
    the U.S. labor market resulting from this change is negligible, and 
    the justification for the rule remains unaffected by this change.
    ---------------------------------------------------------------------------
    
    D. Summary of Costs and Benefits
    
        In preparing this final rule, DHS updated its estimates of the 
    impacted population by examining more recent data, correcting data 
    entry errors made in calculating the population of H-4 dependent 
    spouses assumed to be in the backlog, and revising the estimate of the 
    population eligible pursuant to AC21. This final rule is expected to 
    result in as many as 179,600 H-4 dependent spouses being eligible to 
    apply for employment authorization during the first year of 
    implementation. As many as 55,000 H-4 dependent spouses will be 
    eligible to apply for employment authorization each year after the 
    first year of implementation. DHS stresses that these are maximum 
    estimates of the number of H-4 dependent spouses who may become 
    eligible to apply for employment authorization. Although the estimates 
    are larger than those provided in the preamble to the proposed rule, 
    the initial year estimate (the year with the largest number of 
    potential eligible applicants) provided in this final rule still 
    represents far less than one percent of the overall U.S. workforce. 
    DHS's rationale for this rule thus remains unchanged, especially as the 
    changes made in this rule simply alleviate the long wait for employment 
    authorization that these H-4 dependent spouses endure through the green 
    card process, and accelerate the timeframe within which they generally 
    will become eligible to apply for employment authorization (such as 
    when they apply for adjustment of status).
        The costs associated with this final rule stem from filing fees and 
    the opportunity costs of time associated with filing an Application for 
    Employment Authorization, Form I-765 (``Application for Employment 
    Authorization'' or ``Form I-765''), as well as the estimated cost of 
    procuring two passport-style photos. These costs will only be borne by 
    the H-4 dependent spouses who choose to apply for employment 
    authorization. The costs to the Federal Government of adjudicating and 
    processing the applications are covered by the application fee for Form 
    I-765.
        DHS expects these regulatory amendments to provide increased 
    incentives to H-1B nonimmigrants and their families who have begun the 
    immigration process to remain permanently in the United States and 
    continue contributing to the Nation's economy as they complete this 
    process. DHS believes these regulatory changes will also minimize 
    disruptions to petitioning U.S. employers. A summary of the costs and 
    benefits of the rule is presented in Table 1.
    
      Table 1--Total Costs and Benefits of Initial Employment Authorization for Certain H-4 Dependent Spouses 10-Yr
                                          Present Value Estimates at 3% and 7%
                                                       [$Millions]
    ----------------------------------------------------------------------------------------------------------------
                                                                               Sum of years 2-10  Total over 10-year
                                                            Year 1 estimate     (55,000 filers    period of analysis
                                                           (179,600 filers)        annually)               *
    ----------------------------------------------------------------------------------------------------------------
    3% Discount Rate:
        Total Costs Incurred by Filers @3%..............               $76.1              $181.3              $257.4
    7% Discount Rate:
        Total Costs Incurred by Filers @7%..............                73.2               146.1               219.3
                                                         -----------------------------------------------------------
    
    [[Page 10286]]
    
     
    Qualitative Benefits................................  This rule is intended to remove a disincentive to pursuing
                                                          lawful permanent resident (LPR) status due to the
                                                          potentially long wait for employment-based immigrant visas
                                                          for many H-1B nonimmigrants and their family members. This
                                                          rule will encourage H-1B nonimmigrants who have already
                                                          taken steps to become LPRs to not abandon their efforts
                                                          because their H-4 dependent spouses are unable to work. By
                                                          encouraging H-1B nonimmigrants to continue in their
                                                          pursuit of becoming LPRs, this rule would minimize
                                                          disruptions to petitioning U.S. employers. Additionally,
                                                          eligible H-4 dependent spouses who participate in the
                                                          labor market will benefit financially. DHS also
                                                          anticipates that the socioeconomic benefits associated
                                                          with permitting H-4 spouses to participate in the labor
                                                          market will assist H-1B families in integrating into the
                                                          U.S. community and economy.
    ----------------------------------------------------------------------------------------------------------------
    * Note: Totals may not sum due to rounding.
    
    E. Effective Date
    
        This final rule will be effective on May 26, 2015, 90 days from the 
    date of publication in the Federal Register. DHS has determined that 
    this 90-day effective date is necessary to guarantee that USCIS will 
    have sufficient resources available to process and adjudicate 
    Applications for Employment Authorization filed by eligible H-4 
    dependent spouses under this rule while maintaining excellent customer 
    service for all USCIS stakeholders, including H-1B employers, H-1B 
    nonimmigrants, and their families. With this 90-day effective date, 
    USCIS will be able to implement this rule in a manner that will avoid 
    wholesale delays of processing other petitions and applications, in 
    particular those H-1B petitioners seeking to file petitions before the 
    FY 2016 cap is reached. DHS believes that this effective date balances 
    the desire of U.S. employers to attract new H-1B workers, while 
    retaining current H-1B workers who are seeking employment-based LPR 
    status.
    
    II. Background
    
    A. Current Framework
    
        Under the H-1B nonimmigrant classification, a U.S. employer or 
    agent may file a petition to employ a temporary foreign worker in the 
    United States to perform services in a specialty occupation, services 
    related to a Department of Defense (DOD) cooperative research and 
    development project or coproduction project, or services of 
    distinguished merit and ability in the field of fashion modeling. See 
    INA section 101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b); 8 CFR 
    214.2(h)(4). To employ a temporary nonimmigrant worker to perform such 
    services (except for DOD-related services), a U.S. petitioner must 
    first obtain a certification from the U.S. Department of Labor (DOL) 
    confirming that the petitioner has filed a labor condition application 
    (LCA) in the occupational specialty in which the nonimmigrant will be 
    employed. See 8 CFR 214.2(h)(4)(i)(B) and 8 CFR 214.2(h)(1)(ii)(B). 
    Upon certification of the LCA, the petitioner may file with U.S. 
    Citizenship and Immigration Services (USCIS) a Petition for a 
    Nonimmigrant Worker (Form I-129 with H supplements) (``H-1B petition'' 
    or ``Form I-129'').
        If USCIS approves the H-1B petition, the approved H-1B status is 
    valid for an initial period of up to three years. USCIS may grant 
    extensions for up to an additional three years, such that the total 
    period of the H-1B nonimmigrant's admission in the United States does 
    not exceed six years. See INA section 214(g)(4), 8 U.S.C. 1184(g)(4); 8 
    CFR 214.2(h)(9)(iii)(A)(1), (3), and 8 CFR 214.2(h)(15)(ii)(B)(1). At 
    the end of the six-year period, the nonimmigrant generally must depart 
    from the United States unless he or she: (1) Falls within one of the 
    exceptions to the six-year limit; \2\ (2) has changed to another 
    nonimmigrant status; (3) or has applied to adjust status to that of an 
    LPR.\3\ See INA sections 245(a) and 248(a), 8 U.S.C. 1255(a) and 
    1258(a); 8 CFR 245.1 and 8 CFR 248.1. The dependents (i.e., spouse and 
    unmarried children under 21 years of age) of the H-1B nonimmigrants are 
    entitled to H-4 status and are subject to the same period of admission 
    and limitations as the H-1B nonimmigrant. See 8 CFR 214.2(h)(9)(iv).
    ---------------------------------------------------------------------------
    
        \2\ These exceptions to the six-year limit include those 
    authorized under sections 104(c) and 106(a) and (b) of AC21. Under 
    sections 106(a) and (b) of AC21, an H-1B nonimmigrant who is the 
    beneficiary of a permanent labor certification application or an 
    employment-based immigrant petition that was filed at least 365 days 
    prior to reaching the end of the sixth year of H-1B status may 
    obtain H-1B status beyond the sixth year, in one year increments. 
    See AC21 sections 106(a)-(b), as amended. Another exception is found 
    in section 104(c) of AC21. Under that provision, H-1B nonimmigrants 
    with approved Form I-140 petitions who are unable to adjust status 
    because of per-country visa limits are able to extend their H-1B 
    stay in three-year increments until their adjustment of status 
    applications have been adjudicated. See AC21 section 104(c).
        \3\ For H-1B nonimmigrants performing DOD-related services, the 
    approved H-1B status is valid for an initial period of up to five 
    years, after which the H-1B nonimmigrants may obtain up to an 
    additional five years of admission for a total period of admission 
    not to exceed 10 years. See 8 CFR 214.2(h)(9)(iii)(A)(2), 
    (h)(15)(ii)(B)(2). These H-1B nonimmigrants cannot benefit from AC21 
    sections 106(a) or (b), because those sections solely relate to the 
    generally applicable six-year limitation on H-1B status under INA 
    section 214(g)(4), whereas the requirements for H-1B status for DOD-
    related services, including the 10-year limitation, were established 
    in section 222 of the Immigration Act of 1990, Pub. L. 101-649, 104 
    Stat. 4978; see 8 U.S.C. 1101 note. This rule, however, will 
    authorize eligibility for employment authorization of H-4 dependents 
    of H-1B nonimmigrants performing DOD-related services if the H-1B 
    nonimmigrant is the beneficiary of an approved I-140 petition.
    ---------------------------------------------------------------------------
    
        For H-1B nonimmigrants seeking to adjust their status to or 
    otherwise acquire LPR status through employment-based (EB) immigration, 
    an employer generally must first file a petition on their behalf. See 
    INA section 204(a), 8 U.S.C. 1154(a). An H-1B nonimmigrant may seek LPR 
    status under one of the following five EB preference categories:
    
    [[Page 10287]]
    
         First preference (EB-1)--Aliens with extraordinary 
    ability, outstanding professors and researchers, and certain 
    multinational executives and managers;
         Second preference (EB-2)--Aliens who are members of the 
    professions holding advanced degrees or aliens of exceptional ability;
         Third preference (EB-3)--Skilled workers, professionals, 
    and other workers;
         Fourth preference (EB-4)--Special immigrants (see INA 
    section 101(a)(27), 8 U.S.C. 1101(a)(27)); and
         Fifth preference (EB-5)--Employment creation immigrants. 
    See INA section 203(b), 8 U.S.C. 1153(b).
        Generally, the second (EB-2) and third (EB-3) preference categories 
    require employers to obtain an approved permanent labor certification 
    from DOL prior to filing an immigrant petition with USCIS on behalf of 
    the worker. See INA section 212(a)(5)(A), 8 U.S.C. 1182(a)(5)(A); 8 CFR 
    204.5(a). To apply for adjustment to LPR status, the alien must be the 
    beneficiary of an immigrant visa that is immediately available. See INA 
    sections 201(a), 203(b) and (d), and 245(a); 8 U.S.C. 1151(a), 1153(b) 
    and (d), 1255(a).
        The EB-2 and EB-3 immigrant visa categories for certain 
    chargeability areas are oversubscribed, causing long delays before 
    applicants in those categories, including H-1B nonimmigrants, are able 
    to obtain LPR status. U.S. businesses employing H-1B nonimmigrants 
    suffer disruptions when such workers are required to leave the United 
    States at the termination of their H-1B status as a result of these 
    delays. To ameliorate those disruptions, Congress enacted provisions in 
    AC21 that allow for the extension of H-1B status past the sixth year 
    for workers who are the beneficiaries of certain pending or approved 
    employment-based immigrant visa petitions or labor certification 
    applications. See S. Rep. No. 106-260, at 22 (2000) (``These immigrants 
    would otherwise be forced to return home at the conclusion of their 
    allotted time in H-1B status, disrupting projects and American workers. 
    The provision enables these individuals to remain in H-1B status until 
    they are able to receive an immigrant visa number and acquire lawful 
    permanent residence through either adjustment of status in the United 
    States or through consular processing abroad, thus limiting the 
    disruption to American businesses.'').
        DHS cannot alleviate the delays in visa processing due to the 
    numerical limitations set by statute and the resultant unavailability 
    of immigrant visa numbers.\4\ DHS, however, can alleviate a significant 
    obstacle that may encourage highly skilled foreign workers to leave the 
    United States,\5\ thereby preventing significant disruptions to U.S. 
    employers in furtherance of the congressional intent expressed through 
    AC21.
    ---------------------------------------------------------------------------
    
        \4\ The worldwide level of EB immigrant visas that may be issued 
    each fiscal year is set at 140,000 visas, plus the difference 
    between the maximum number of immigrant visas which may be issued 
    under section 203(a) of the INA, 8 U.S.C. 1153(a) (relating to 
    family-sponsored immigrants) and the number of visas used under that 
    section for the previous fiscal year. See INA section 201(d), 8 
    U.S.C. 1151(d). These EB visa numbers are also limited by country. 
    Generally, in any fiscal year, foreign nationals born in any single 
    country may use no more than 7 percent of the total number of 
    immigrant visas available in the family- and employment-based 
    immigrant visa classifications. See INA section 202(a)(2), 8 U.S.C. 
    1152(a)(2).
        \5\ These obstacles, moreover, may discourage highly skilled 
    foreign workers from seeking employment in the United States in the 
    first instance. This final rule will diminish that possibility.
    ---------------------------------------------------------------------------
    
    B. Proposed Rule
    
        On May 12, 2014, DHS published a proposed rule in the Federal 
    Register at 79 FR 26886, proposing to amend:
         8 CFR 214.2(h)(9)(iv) to extend eligibility for employment 
    authorization to H-4 dependent spouses of H-1B nonimmigrants if the H-
    1B nonimmigrants either: are the principal beneficiaries of an approved 
    Immigrant Petition for Alien Worker (Form I-140); \6\ or have been 
    granted H-1B status pursuant to sections 106(a) and (b) of AC21; and
    ---------------------------------------------------------------------------
    
        \6\ The H-1B nonimmigrant must be the principal beneficiary of 
    the approved I-140 petition, not the derivative beneficiary, 
    consistent with the preamble to the proposed rule: ``Specifically, 
    DHS is proposing to limit employment authorization to H-4 dependent 
    spouses only during AC21 extension periods granted to the H-1B 
    principal worker or after the H-1B principal has obtained an 
    approved Immigrant Petition for Alien Worker.'' See 79 FR at 26891 
    (emphasis added); see also id. at 26896 (estimating ``annual demand 
    flow of H-4 dependent spouses who would be eligible to apply for 
    initial work authorization under this proposed rule . . . based on: 
    (1) the number of approved Immigrant Petitions for Alien Worker 
    (Forms I-140) where the principal beneficiary is currently in H-1B 
    status'').
    ---------------------------------------------------------------------------
    
         8 CFR 274a.12(c) by adding paragraph (26) listing the H-4 
    dependent spouses described in revised 8 CFR 214.2(h)(9)(iv) as a new 
    class of aliens eligible to request employment authorization from 
    USCIS. Aliens within this class would only be authorized for employment 
    following approval of their Application for Employment Authorization 
    (Form I-765) by USCIS and receipt of an Employment Authorization 
    Document (Form I-766) (``EAD'').
    
    DHS also proposed conforming changes to Form I-765. DHS proposed adding 
    H-4 dependent spouses described in the proposed rule to the classes of 
    aliens eligible to file the form, with the required fee. DHS also 
    proposed a list of the types of supporting documents that may be 
    submitted with Form I-765 to establish eligibility.
        DHS received nearly 13,000 public comments to the proposed rule. An 
    overwhelming percentage of commenters (approximately 85 percent) 
    supported the proposal, while a small percentage of commenters 
    (approximately 10 percent) opposed the proposal. Approximately 3.5 
    percent of commenters expressed a mixed opinion about the proposal.
    
    C. Final Rule
    
        In preparing this final rule, DHS considered all of the public 
    comments contained in the docket. Although estimates of the current 
    population of H-4 dependent spouses who will be eligible for employment 
    authorization pursuant to this rule have changed, the effect of the 
    revision does not affect the justification for the rule, and DHS is 
    adopting the regulatory amendments set forth in the proposed rule with 
    only minor, non-substantive changes to 8 CFR 214.2(h)(9)(iv) to improve 
    clarity and readability. These technical changes clarify that an H-4 
    dependent spouse covered by this rule should include with his or her 
    Application for Employment Authorization (Form I-765) evidence 
    demonstrating that he or she is currently in H-4 status and that the H-
    1B nonimmigrant is currently in H-1B status. Also, in response to 
    public comments regarding filing procedures for Applications for 
    Employment Authorization (Forms I-765) under this rule, DHS is making 
    conforming revisions to 8 CFR 214.2(h)(9)(iv) and 8 CFR 274a.13(d) to 
    permit H-4 dependent spouses under this rule to concurrently file the 
    Form I-765 with an Application to Extend/Change Nonimmigrant Status 
    (Form I-539).
        The rationale for the proposed rule and the reasoning provided in 
    its background section remain valid with respect to these regulatory 
    amendments. This final rule does not address comments seeking changes 
    in U.S. laws, regulations, or agency policies that are unrelated to 
    this rulemaking. This final rule also does not change the procedures or 
    policies of other DHS components or federal agencies, or resolve issues 
    outside the scope of this rulemaking. Comments may be reviewed at the 
    Federal Docket Management System (FDMS) at http://www.regulations.gov, 
    docket number USCIS-2010-0017.
    
    [[Page 10288]]
    
    III. Public Comments on the Proposed Rule
    
    A. Summary of Public Comments
    
        In response to the proposed rule, DHS received nearly 13,000 
    comments during the 60-day public comment period. Commenters included, 
    among others, individuals, employers, academics, labor organizations, 
    immigrant advocacy groups, attorneys, and nonprofit organizations. More 
    than 250 comments were also submitted through mass mailing campaigns.
        While opinions on the proposed rule varied, a substantial majority 
    (approximately 85 percent) of commenters supported the extension of 
    employment authorization to the class of H-4 dependent spouses 
    described in the proposed rulemaking. Supporters of the proposed rule 
    agreed that it would help the United States to attract and retain 
    highly skilled foreign workers; alleviate economic burdens on H-1B 
    nonimmigrants and their families during the transition from 
    nonimmigrant to LPR status; and promote family unity. Some supporters 
    also stated that the rule furthers women's rights, noting the impact 
    the rule's change will have on promoting financial independence for the 
    H-4 dependent spouse, potentially reducing factors which could lead to 
    domestic violence, and assuaging negative health effects (such as 
    depression).\7\ Others voiced the belief that this rule aligns with 
    core U.S. values, asserting that employment authorization should be 
    considered a constitutional or human rights issue or an issue of equal 
    opportunity.
    ---------------------------------------------------------------------------
    
        \7\ An H-4 dependent spouse who is the victim of domestic 
    violence may be independently eligible for employment authorization 
    under certain circumstances. As noted in the proposed rule, section 
    814(b) of the Violence Against Women Act and Department of Justice 
    Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, amended 
    the INA by adding new section 204(a)(1)(K), 8 U.S.C. 1154(a)(1)(K), 
    which provides for employment authorization incident to the approval 
    of a VAWA self-petition. Section 814(c) of VAWA 2005 amended the INA 
    by adding new section 106, which provides eligibility for employment 
    authorization to battered spouses of aliens admitted in certain 
    nonimmigrant statuses, including H-1B status.
    ---------------------------------------------------------------------------
    
        Commenters commonly stated that if spouses are authorized for 
    employment, families would be more stable, contribute more to their 
    local communities, and more fully focus on their future in the United 
    States. Additionally, commenters outlined ways they thought this 
    proposal would help the U.S. economy, such as by increasing disposable 
    income, promoting job creation, generating greater tax revenue, and 
    increasing home sales. Several commenters agreed that extending 
    employment authorization as described in the rule will promote U.S. 
    leadership in innovation by strengthening the country's ability to 
    recruit and retain sought-after talent from around the world. Finally, 
    some commenters noted that this rule would facilitate U.S. businesses' 
    ability to create additional U.S. jobs by improving the retention of 
    workers with critical science, technology, engineering and math (STEM) 
    skills.
        The approximately 10 percent of commenters who opposed the proposed 
    rule cited to potential adverse effects of the rule, including 
    displacement of U.S. workers, increasing U.S. unemployment, and 
    lowering of wages. Some commenters expressed concern that the rule may 
    negatively affect other nonimmigrant categories. Other commenters were 
    concerned that this rule may cause the lowering of minimum working 
    standards in certain sectors of the economy, such as in the Information 
    Technology sector. Some commenters questioned DHS's legal authority to 
    promulgate this regulatory change.
        About 3.5 percent of commenters had a mixed opinion about the 
    proposed regulation. Some of these commenters were concerned about the 
    size and scope of the class made eligible for employment authorization 
    under the rule; some argued that the described class is too 
    restrictive, while others argued that it is too broad. Other commenters 
    expressed concern about the possibility of fraud. Approximately 200 
    commenters (about 1.5 percent of commenters) submitted responses that 
    are beyond the scope of this rulemaking, such as comments discussing 
    U.S. politics but not addressing immigration, submissions from 
    individuals who sent in their resumes or discussed their professional 
    qualifications without opining on the proposed rule, and comments on 
    the merits of other commenter's views, but not on the proposed changes.
        DHS has reviewed all of the public comments received in response to 
    the proposed rule and addresses relevant comments in this final rule. 
    DHS's responses are grouped by subject area, with a focus on the most 
    common issues and suggestions raised by commenters.
    
    B. Classes Eligible for Employment Authorization
    
    1. Comments Supporting the Rule
        The comments supporting the proposed rule largely underscored the 
    positive socioeconomic benefits this rule would have for certain H-1B 
    nonimmigrants and their H-4 dependent spouses. For example, several 
    commenters noted that while they knew about the restriction on H-4 
    employment before coming to the United States, they did not anticipate 
    such a long wait to apply for LPR status or the emotional toll that 
    long-term unemployment would take on them and their families. Other 
    commenters noted they have not been able to apply for a social security 
    card or a driver's license in certain states because they do not have 
    an Employment Authorization Document (EAD) (Form I-766). Approximately 
    200 commenters noted that the current policy of allowing only the H-1B 
    nonimmigrant to work often led to family separation or the decision to 
    immigrate to other countries that authorize employment for dependent 
    spouses.
        A few commenters described their families as dual H-1B nonimmigrant 
    households and supported the principle of both spouses working. These 
    commenters voiced appreciation for the changes in the proposed rule, 
    which will allow the H-4 dependent spouse to seek employment while the 
    H-1B nonimmigrant continues to pursue permanent residence.
        More than a thousand commenters believe this change will help U.S. 
    businesses retain highly skilled H-1B nonimmigrants. More than 500 
    commenters asserted that the addition of skilled H-4 dependent spouses 
    into the workforce will help U.S. employers. More than 60 commenters 
    stated that they had planned to move out of the United States, but will 
    instead remain and pursue LPR status as a result of this rule change. 
    Approximately two dozen commenters noted that they had already moved 
    out of the United States due to the prohibition on employment for H-4 
    dependent spouses. Several commenters stated that they are planning to 
    leave the United States in the near future because H-4 dependent 
    spouses cannot work under the current rules.
        Nearly 400 commenters who supported the final rule also asserted 
    that the regulation should be implemented without change as a matter of 
    fairness. According to the comments, the regulation will help H-1B 
    nonimmigrants and their families who have maintained legal status for 
    years, contributed to the economy, and demonstrated the intent to 
    permanently remain in the United States.
        The overwhelmingly positive responses from the public to the 
    proposed rule has strengthened DHS's view, as expressed in the proposed 
    rule,
    
    [[Page 10289]]
    
    that extending employment authorization eligibility to the class of H-4 
    dependent spouses of H-1B nonimmigrants described in this rulemaking 
    will have net beneficial results. Among other things, the rule will 
    increase the likelihood that H-1B nonimmigrants will continue to pursue 
    the LPR process through completion. DHS further believes that this rule 
    will provide increased incentives to U.S. employers to begin the 
    immigrant petitioning process on behalf of H-1B nonimmigrants, 
    encourage more H-1B nonimmigrants to pursue lawful permanent residence, 
    and bolster U.S. competitiveness. This rule will also decrease 
    workforce disruptions and other harms among U.S. employers caused by 
    the departure from the United States of H-1B nonimmigrants for whom 
    businesses have filed employment-based immigrant visa petitions. This 
    policy supports Congress' intent in enacting AC21. See S. Rep. No. 106-
    260, at 2-3, 23 (2000).
        A handful of commenters supporting the proposed rule requested 
    clarification on whether H-4 dependent spouses will be permitted to 
    file for employment authorization based on their classification as an 
    H-4 dependent spouse if they have a pending adjustment of status 
    application. DHS confirms that under this rule, H-4 dependent spouses 
    with pending adjustment of status applications are still eligible for 
    employment authorization on the basis of their H-4 classification. They 
    may choose to apply for employment authorization based on either the H-
    4 dependent spouse category established by this rule under new 8 CFR 
    274a.12(c)(26) or the adjustment of status category under 8 CFR 
    274a.12(c)(9).
        Another commenter asked if H-4 dependent spouses of H-1B 
    nonimmigrants who have extended their stay under section 104(c) of AC21 
    would be eligible for work authorization. DHS confirms that H-4 
    dependent spouses of H-1B nonimmigrants who have extended their stay 
    under section 104(c) of AC21 are eligible for employment authorization 
    under this rule. Section 104(c) of AC21 applies to a subset of H-1B 
    nonimmigrants who are the principal beneficiaries of approved Form I-
    140 petitions.\8\ Because this rule provides eligibility for employment 
    authorization to H-4 dependent spouses of all H-1B nonimmigrants who 
    are the principal beneficiaries of approved Form I-140 petitions, it 
    captures the section 104(c) subset. DHS has thus determined that it is 
    unnecessary to include section 104(c) of AC21 as a separate basis for 
    employment authorization eligibility in this rule.
    ---------------------------------------------------------------------------
    
        \8\ See Mem. from Donald Neufeld, Acting Assoc. Dir., Domestic 
    Operations, USCIS, Supplemental Guidance Relating to Processing 
    Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B 
    Petitions, and I-485 Adjustment Applications Affected by the 
    American Competitiveness in the Twenty-First Century Act of 2000 
    (AC21) (Pub. L. 106-313), as amended, and the American 
    Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title 
    IV of Div. C. of Public Law 105-277, at 6 (May 30, 2008) (``AC21 
    Sec.  104(c) is applicable when an alien . . . is the beneficiary of 
    an approved I-140 petition.'') (emphasis in original).
    ---------------------------------------------------------------------------
    
    2. Comments Requesting Expansion of the Rule
    i. H-4 Dependent Spouses of H-1B1, H-2 and H-3 Nonimmigrants
        Slightly over 200 commenters requested that DHS extend eligibility 
    for employment authorization to the H-4 dependent spouses of H 
    nonimmigrants who are not in H-1B status (H-1B1, H-2 and H-3 
    nonimmigrants), and not only to the spouses of certain H-1B 
    nonimmigrants who have begun the process of permanent residence through 
    employment.\9\ Some of these commenters expressed that this expansion 
    would also help U.S. competitiveness by attracting more skilled workers 
    from abroad.
    ---------------------------------------------------------------------------
    
        \9\ The H-4 classification includes dependents of H-2A temporary 
    agricultural workers, H-2B temporary nonagricultural workers, H-3 
    trainees, H-1B specialty occupation workers, and H-1B1 Free Trade 
    Agreement specialty occupation workers from Singapore and Chile. See 
    INA 101(a)(15)(H); see also 8 CFR 214.2(h)(9)(iv).
    ---------------------------------------------------------------------------
    
        DHS has determined that expansion of employment authorization 
    beyond the class of H-4 dependent spouses described in the proposed 
    rule is not appropriate at this time, and it has therefore not included 
    such an expansion in this final rule. First, the Department believes 
    this rule best achieves DHS's goals of helping U.S. employers minimize 
    potential disruptions caused by the departure from the United States of 
    certain highly skilled workers, enhancing U.S. employer's ability to 
    attract and retain such workers, and increasing America's economic 
    competitiveness.
        Second, DHS notes two significant differences between H-1B 
    nonimmigrants and other H nonimmigrants under the immigration laws. The 
    INA explicitly permits H-1B nonimmigrants to have what is known as 
    ``dual intent,'' pursuant to which an H-1B nonimmigrant may be the 
    beneficiary of an immigrant visa petition filed under section 204 of 
    the INA or otherwise seek LPR status without evidencing an intention to 
    abandon a foreign residence for purposes of obtaining or maintaining H-
    1B status. See INA 214(h); see also 8 CFR 214.2(h)(16). Further, in 
    enacting AC21, Congress permitted H-1B nonimmigrants who are the 
    beneficiaries of certain pending or approved employment-based immigrant 
    visa petitions or labor certification applications to remain in the 
    United States beyond the six-year statutory maximum period of stay. 
    Congress therefore has passed legislation specifically encouraging, and 
    removing impediments to, the ability of H-1B nonimmigrants to seek LPR 
    status, such that they may more readily contribute permanently to 
    United States economic sustainability and growth. Congress has not 
    extended similar benefits to other H nonimmigrants, including H-1B1 
    (Free Trade Agreement specialty workers from Chile and Singapore), H-2A 
    (temporary agricultural workers), H-2B (temporary nonagricultural 
    workers), or H-3 nonimmigrants (trainees). Extending employment 
    authorization to certain H-4 dependent spouses of H-1B nonimmigrants, 
    and not to H-4 dependent spouses of other H nonimmigrants, thus serves 
    to advance the Department's immediate interest in furthering the aims 
    of AC21.\10\
    ---------------------------------------------------------------------------
    
        \10\ As noted in the proposed rule, to ease the negative impact 
    of immigrant visa processing delays, Congress intended that the AC21 
    provisions allowing for extension of H-1B status past the sixth year 
    for workers who are the beneficiaries of certain pending or approved 
    employment-based immigrant visa petitions or labor certification 
    applications would minimize disruption to U.S. businesses employing 
    H-1B workers that would result if such workers were required to 
    leave the United States. See S. Rep. No. 106-260, at 22 (2000) 
    (``These immigrants would otherwise be forced to return home at the 
    conclusion of their allotted time in H-1B status, disrupting 
    projects and American workers. The provision enables these 
    individuals to remain in H-1B status until they are able to receive 
    an immigrant visa number and acquire LPR status either through 
    adjustment of status in the United States or through consular 
    processing abroad, thus limiting the disruption to American 
    businesses.'').
    ---------------------------------------------------------------------------
    
        Finally, as noted in the proposed rule, DHS may consider expanding 
    H-4 employment eligibility in the future. See Ctr. for Biological 
    Diversity v. EPA, 722 F.3d 401, 410 (D.C. Cir. 2013) (observing that 
    ```agencies have great discretion to treat a problem partially''') 
    (quoting City of Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C. Cir. 
    1989)); Lamers Dairy Inc. v. U.S. Dep't of Agric., 379 F.3d 466, 475 
    (7th Cir. 2004) (``[T]he government must be allowed leeway to approach 
    a perceived problem incrementally. Similarly, equal protection does not 
    require a governmental entity to choose between attacking every aspect 
    of a problem or not attacking the problem at all.'') (quotation marks 
    omitted) (citing FCC v. Beach Commc'ns, 508 U.S. 307,
    
    [[Page 10290]]
    
    316 (1993); and Dandridge v. Williams, 397 U.S. 471, 487 (1970)).
    ii. H-4 Dependent Spouses of All H-1B Nonimmigrants
        Over 150 commenters noted that all dependent spouses of other 
    nonimmigrant categories, such as the spouses of L-1 (intracompany 
    transferee), E-1 (treaty trader), E-2 (treaty investor), and E-3 
    (Australian specialty occupation workers) nonimmigrants, are eligible 
    to apply for employment authorization These commenters stated that 
    because the employment-based nonimmigrant categories are similar to 
    each other, all H-4 dependent spouses of H-1B nonimmigrants--rather 
    than only certain subclasses of H-4 dependent spouses--likewise should 
    be eligible for employment authorization.
        DHS, however, recognizes an important difference between the 
    dependent spouse category of H-1B nonimmigrants and those of L-1, E-1, 
    E-2, and E-3 nonimmigrants. Specifically, Congress directed by statute 
    that DHS grant employment authorization to all spouses of L-1, E-1, E-
    2, and E-3 nonimmigrants.\11\ See Public Law 107-124 (2002) (amending 
    the INA to expressly authorize employment for spouses of E 
    nonimmigrants); Public Law 107-125 (2002) (same for spouses of L 
    nonimmigrants); see also INA section 214(c)(2)(E) & (e)(6), 8 U.S.C. 
    1184(c)(2)(E) & (e)(6). Congress has not provided such statutory 
    direction with respect to the spouses of H-1B nonimmigrants. Thus, the 
    fact that the INA authorizes dependent spouses of L and E nonimmigrants 
    for U.S. employment does not indicate that H-4 dependent spouses of all 
    H-1B nonimmigrants also must be authorized to work.
    ---------------------------------------------------------------------------
    
        \11\ DHS is implementing the statutory provisions authorizing 
    employment of spouses of L-1, E-1, E-2, and E-3 nonimmigrants, 
    though the regulations have not been revised.
    ---------------------------------------------------------------------------
    
        In extending such employment authorization through regulation, DHS 
    studied congressional intent with respect to H-1B nonimmigrants. 
    Although Congress has not specifically required extending employment 
    authorization to dependent spouses of H-1B nonimmigrants, Congress did 
    recognize in AC21 the importance of addressing the lengthy delays faced 
    by such workers seeking to obtain LPR status. Consistent with this 
    congressional concern, and the legal authorities vested in the 
    Secretary of Homeland Security described in Section C, below, DHS has 
    chosen to limit this regulation within that statutory framework, and 
    the Department declines to extend the changes made by this rule to the 
    H-4 dependent spouses of all H-1B nonimmigrants at this time.
    iii. Employment Authorization Incident to Status
        Over 60 commenters requested that H-4 dependent spouses be granted 
    employment authorization ``incident to status,'' which would relieve 
    the need to apply for employment authorization before receiving it. 
    These commenters generally recommended that DHS provide employment 
    authorization incident to status by authorizing the employment of H-4 
    dependent spouses through amendment to 8 CFR 274a.12(a) instead of 8 
    CFR 274a.12(c), which provides employment authorization through case-
    by-case, discretionary adjudications of each individual request.\12\ 
    For those classes of aliens listed in 8 CFR 274a.12(a), employment 
    authorization is automatic upon the grant of immigration status. 
    Examples of classes of aliens who are employment authorized incident to 
    status under 8 CFR 274a.12(a) are LPRs, asylees, and refugees.
    ---------------------------------------------------------------------------
    
        \12\ DHS regulations provide for three categories of persons 
    eligible for employment authorization: (1) aliens authorized for 
    employment incident to status, see 8 CFR 274a.12(a); (2) aliens 
    authorized to work for a specific employer incident to status, see 8 
    CFR 274a.12(b); and (3) aliens who must apply to USCIS for 
    employment authorization, see 8 CFR 274a.12(c).
    ---------------------------------------------------------------------------
    
        DHS is unable to classify H-4 dependent spouses described in this 
    rule as employment authorized incident to status. Unlike other 
    noncitizens who are employment authorized incident to status, H-4 
    dependent spouses will not be eligible for employment authorization 
    based solely on their immigration status. Rather, H-4 dependent spouses 
    must meet certain additional conditions before they can be granted 
    employment authorization, and current USCIS systems cannot 
    automatically and independently determine whether such conditions have 
    been met. USCIS systems, for example, cannot independently or 
    automatically determine whether an H-4 dependent spouse has the 
    requisite spousal relationship to an H-1B nonimmigrant who either is 
    the beneficiary of an approved Form I-140 petition or has been granted 
    H-1B nonimmigrant status under sections 106(a) and (b) of AC21; that 
    determination must be made by a USCIS adjudicator. DHS has therefore 
    determined that it must require the filing of an application requesting 
    employment authorization, see 8 CFR 274a.12(c) and 8 CFR 274a.13, 
    before it can extend employment authorization to the class of H-4 
    dependent spouses described in this rule. This application process will 
    ensure that only eligible H-4 dependent spouses receive a grant of 
    employment authorization and proper documentation evidencing such 
    employment authorization, and will avoid granting employment 
    authorization to ineligible spouses.
    iv. Employment Authorization at Different Points in Time
        More than a dozen commenters requested that the class of H-4 
    dependent spouses who are eligible for employment authorization be 
    expanded by permitting them to file at points in time different from 
    those provided in the proposed rule. DHS carefully considered these 
    suggestions for determining when an H-4 dependent spouse should be 
    eligible for employment authorization. For the reasons that follow, DHS 
    has determined that it will not adopt the commenters' suggestions in 
    this final rule.
    (1) H-1B Nonimmigrants With Pending PERM Labor Certifications or Form 
    I-140 Petitions
        Some commenters requested that DHS make H-4 dependent spouses 
    eligible for employment authorization when their H-1B nonimmigrant 
    spouses have filed permanent (PERM) labor certifications with DOL.\13\ 
    Other commenters suggested providing such eligibility when H-1B 
    nonimmigrants have Form I-140 petitions or adjustment of status 
    applications pending with USCIS.
    ---------------------------------------------------------------------------
    
        \13\ Currently, employers seeking to file immigrant visa 
    petitions on behalf of noncitizens in certain employment-based 
    preference categories must first obtain a labor certification under 
    DOL's PERM program. See generally INA sections 204(b), 212(a)(5); 8 
    U.S.C. 1154(b), 1182(a)(5); 8 CFR 204.5(k)-(l); 20 CFR pt. 656.
    ---------------------------------------------------------------------------
    
        DHS believes that the basis for eligibility in the proposed rule 
    reasonably addresses H-4 dependent spouses' interests in obtaining 
    employment authorization at the earliest possible time in advancing the 
    Department's policy goals of attracting and retaining highly skilled 
    workers and promoting compliance with U.S. immigration laws. In 
    furtherance of these goals, DHS has chosen to limit eligibility for 
    employment authorization to cases where the H-1B nonimmigrant either: 
    (1) Is the principal beneficiary of an approved Form I-140 and thus is 
    on a path to lawful permanent residence that is reasonably likely to 
    conclude successfully; or (2) has been granted H-
    
    [[Page 10291]]
    
    1B status under sections 106(a) and (b) of AC21. This approach provides 
    several benefits to the Department.
        Among other things, the approach allows DHS to confirm a 
    significant record of compliance with U.S. immigration laws, which 
    indicates the likelihood of continued compliance in the future. 
    Requiring an approved Form I-140 petition, for example, reduces the 
    risk of frivolous labor certification and immigrant visa petition 
    filings for the purpose of making H-4 dependent spouses eligible for 
    employment authorization, because the approval of the petition 
    generally signifies that the foreign worker is eligible for the 
    underlying immigrant classification. In contrast, authorizing 
    employment immediately upon the filing of a PERM application or Form I-
    140 petition (rather than after the 365-day waiting period or the 
    approval of the Form I-140 petition) could produce a reasonable 
    possibility of granting employment authorization to an H-4 dependent 
    spouse where the H-1B nonimmigrant's case might not be approvable and 
    the H-1B nonimmigrant has a relatively shorter record of compliance 
    with U.S. immigration laws. The eligibility requirements in this rule 
    also allow for better control of processing, as it is difficult for 
    USCIS to track another agency's filings, such as PERM applications. 
    Finally, with respect to the comment suggesting that employment should 
    be authorized at the point when an adjustment of status application is 
    pending, Department regulations already provide eligibility for 
    employment authorization in that situation. See 8 CFR 274a.12(c)(9).
    (2) H-1B Nonimmigrants Who Are Eligible for AC21 Extensions Under 
    Sections 106(a) and (b)
        Some commenters expressed support for an alternative policy that 
    would extend employment authorization to certain H-4 dependent spouses 
    of H-1B nonimmigrants who are eligible for, but have not yet been 
    approved for, extensions of status under sections 106(a) and (b) of 
    AC21. DHS declines to adopt such a policy because it creates the 
    possibility of granting employment authorization to H-4 dependent 
    spouses of H-1B nonimmigrants who are later denied the extension of H-
    1B status. For instance, a labor certification or Form I-140 petition 
    may have been timely filed on behalf of the H-1B nonimmigrant 365 days 
    prior to the prospective expiration of his or her six-year limitation 
    of stay, thus making the H-1B nonimmigrant eligible for an extension 
    under AC21. But the labor certification or Form I-140 petition 
    ultimately may be denied before the H-1B nonimmigrant files for and 
    receives the AC21 extension. Additionally, if the individual is 
    determined to be ineligible for the H-1B extension, he or she would no 
    longer be maintaining H-1B status and the U.S. employer will be unable 
    to retain the worker. Accordingly, DHS believes the sounder policy is 
    to extend employment authorization to H-4 dependent spouses of H-1B 
    nonimmigrants who have been granted H-1B status pursuant to AC21, 
    ensuring that such H-1B nonimmigrants are maintaining H-1B status and 
    are significantly down the path to obtaining LPR status.
    (3) Pending Form I-140 Immigrant Petitions With New Employer
        Fewer than a dozen commenters requested that DHS extend employment 
    authorization to H-4 dependent spouses in cases where the H-1B 
    nonimmigrants have transferred their employment to a new employer and 
    are in the process of obtaining approval of a new Form I-140 petition. 
    As noted above, however, authorizing employment based solely on the 
    filing (rather than the approval) of a PERM application or Form I-140 
    petition is likely to encourage frivolous filings to allow the H-4 
    dependent spouse to obtain employment authorization while the filings 
    remain pending. DHS thus is not extending this rule on the basis of 
    pending PERM applications or Form I-140 petitions. By requiring that a 
    Form I-140 petition first be approved, DHS will further disincentivize 
    frivolous filings and better serve the goal of extending the 
    immigration benefit of this rule to only those spouses of H-1B 
    nonimmigrants who are genuinely on the path to lawful permanent 
    residence.
    v. H-4 Minors
        Less than 40 commenters requested that DHS authorize employment for 
    certain H-4 dependent minor children whose H-1B nonimmigrant parent is 
    the beneficiary of an approved Form I-140 or has been granted an 
    extension of his or her authorized period of admission in the United 
    States under AC21. These commenters cited concerns about H-4 dependent 
    children being unable to obtain the same types of work experience as 
    their peers, being unable to afford post-secondary education in the 
    United States, and losing eligibility for H-4 status through age (known 
    as ``aging-out'' \14\) before their parents can file for adjustment of 
    status. Some commenters also raised fairness concerns, given the 
    eligibility under DHS deferred action policies that make eligible for 
    employment authorization certain individuals who came to the United 
    States unlawfully as children under the age of 16.\15\
    ---------------------------------------------------------------------------
    
        \14\ To qualify as a ``child'' for purposes of the immigration 
    laws, an individual generally must be unmarried and under the age of 
    21. See INA section 101(b)(1), 8 U.S.C. 1101(b)(1). The Child Status 
    Protection Act (CSPA) amended the INA by permitting certain 
    individuals over the age of 21 to continue to qualify as a child for 
    purposes of certain immigration benefits. See Public Law 107-208 
    (2002). If an individual becomes too old to qualify as a child under 
    the immigration law, and in turn no longer can derivatively benefit 
    from a petition or application on behalf of a parent, he or she is 
    described as ``aging out.''
        \15\ On June 15, 2012, the Secretary of Homeland Security 
    announced that certain aliens who came to the United States as 
    children and meet several guidelines may request consideration for 
    deferred action from removal for a period of two years, subject to 
    renewal. This policy is generally referred to as Deferred Action for 
    Childhood Arrivals (DACA). On November 20, 2014, the Secretary 
    announced expanded eligibility guidelines for consideration under 
    the DACA policy and extended the period of deferred action and work 
    authorization from two years to three years.
    ---------------------------------------------------------------------------
    
        DHS declines to adopt the commenters' suggestions to expand 
    eligibility for employment authorization to H-4 dependent minor 
    children. As reflected by the comments, DHS does not view the 
    employment of dependent minor children in the United States as a 
    significant deciding factor for an H-1B nonimmigrant considering 
    whether to remain in the United States and seek LPR status while 
    continuing employment with his or her U.S. employer. Also, as stated in 
    the proposed rule, extending employment eligibility to certain H-4 
    dependent spouses will alleviate a significant portion of the potential 
    economic burdens that H-1B nonimmigrants currently may face, such as 
    paying for academic expenses for their children, during the transition 
    from nonimmigrant to LPR status as a result of the inability of their 
    dependent family members to work in the United States.
        Additionally, limiting employment authorization to H-4 dependent 
    spouses is consistent with the treatment of dependent minors in other 
    nonimmigrant employment categories (such as the L and E nonimmigrant 
    categories), which provide employment authorization to dependent 
    spouses but not dependent children. And in the instances where DHS has 
    extended eligibility for employment authorization to minor children, 
    foreign policy reasons have been an underlying consideration. DHS has 
    extended eligibility for employment authorization to minors within the 
    following nonimmigrant categories: Dependents of Taipei Economic and 
    Cultural
    
    [[Page 10292]]
    
    Representative Office (TECRO) E-1 nonimmigrants; J-2 dependent children 
    of J-1 foreign exchange visitors; dependents of A-1 and A-2 foreign 
    government officials; dependents of G-1, G-3, and G-4 international 
    organization officials; and dependents of NATO officials. Each of these 
    instances involves foreign policy considerations that are not present 
    in the H-1B nonimmigrant program.
        DHS also declines to extend employment authorization to H-4 
    dependent children who age out and lose their H-4 status. Providing 
    work authorization in such circumstances would encourage such 
    individuals to violate the terms of their authorized stay. Moreover, 
    comments suggesting that the Department should make changes to prevent 
    H-4 dependent minor children from aging out are outside the scope of 
    this rulemaking, which in no way involves the ability of a minor to 
    maintain H-4 status or eligibility for LPR status as a derivative 
    beneficiary of a parent's immigrant petition.
        Finally, the circumstances of persons eligible for consideration of 
    Deferred Action for Childhood Arrivals (``DACA'') are distinct from 
    those of H-4 dependent minor children, and the policy for authorizing 
    employment for individuals who have received deferred action has no 
    bearing on whether H-4 dependent minor children should be eligible to 
    apply for employment authorization. The DACA program concerns the 
    departmental exercise of prosecutorial discretion with the aim of 
    ensuring that limited DHS enforcement resources are appropriately 
    focused on the Department's highest enforcement priorities. The policy 
    aims underlying this rule, as described above, are different, and for 
    the reasons already discussed do not justify extending employment 
    authorization to the H-4 dependent children of H-1B nonimmigrants.
    vi. Principal Beneficiaries
        A few dozen commenters requested that the rule also allow H-1B 
    nonimmigrants to receive Employment Authorization Documents (EADs), 
    which authorize employment without regard to employer, incident to 
    status.\16\ One commenter requested that DHS provide one EAD to 
    households in which both spouses have H-1B status in order to avoid 
    necessitating one of the spouses to change to H-4 status. A few 
    commenters requested an EAD for an H-1B nonimmigrant whose spouse is 
    also in H-1B status, but has been granted a different length of stay.
    ---------------------------------------------------------------------------
    
        \16\ The commenters' refer to these unrestricted EADs as ``open 
    market'' EADs. In contrast, classes of aliens listed in 8 CFR 
    274a.12(b), such as H-1B nonimmigrants, are authorized for 
    employment only with a specific employer.
    ---------------------------------------------------------------------------
    
        DHS declines to adopt the commenters' suggestions regarding EADs 
    for H-1B nonimmigrants. If an H-1B nonimmigrant would like to apply for 
    an EAD as the dependent spouse of an eligible H-1B nonimmigrant, he or 
    she must first change to H-4 status. Moreover, issuance of an EAD to an 
    H-1B nonimmigrant authorizing employment other than with his or her 
    petitioning employer is incompatible with the H-1B classification, 
    which allows employment only with the petitioning employer.\17\ If an 
    H-1B nonimmigrant works on an EAD for an employer other than his or her 
    petitioning employer, he or she may be violating the terms and 
    conditions of his or her petition and, therefore, may no longer be 
    maintaining a valid nonimmigrant status.
    ---------------------------------------------------------------------------
    
        \17\ See INA sections 101(a)(15)(H)(i)(b) (requiring that DOL 
    determine and certify that ``the intending employer has filed'' an 
    LCA) (emphasis added), 212(n) (establishing LCA requirements 
    applicable to employers of H-1B nonimmigrants), 214(c) (requiring 
    employers file petitions with the Secretary of Homeland Security to 
    employ an H-1B nonimmigrant); 8 U.S.C. 1101(a)(15)(H)(i)(b), 
    1182(n), 1184(c).
    ---------------------------------------------------------------------------
    
    vii. H-4 Dependent Spouses Not Selected in the H-1B Lottery
        Less than 20 commenters requested a carve-out for H-4 dependent 
    spouses who had filed an H-1B petition but who were not selected in the 
    H-1B computer-generated random selection process (``H-1B 
    lottery'').\18\ Although DHS appreciates the frustration that may 
    result from not being selected in the H-1B lottery, the Department 
    declines to extend eligibility for employment authorization to these H-
    4 dependent spouses. This rule is not a substitute for the H-1B program 
    and is not intended to circumvent the H-1B lottery. A primary purpose 
    of this rule is to help U.S. businesses retain the H-1B nonimmigrants 
    for whom they have already filed an employment-based immigrant 
    petition. Expanding the rule to help nonimmigrants in other situations 
    does not directly support this goal.
    ---------------------------------------------------------------------------
    
        \18\ If USCIS receives more than a sufficient number of H-1B 
    petitions to reach the general statutory cap of 65,000 visas or the 
    20,000 cap under the advanced degree exemption during the filing 
    period, see INA section 214(g)(1)(A), (5)(C), 8 U.S.C. 
    1184(g)(1)(A), (5)(C), USCIS holds a computer-generated random 
    selection process, or lottery, to select enough petitions to meet 
    the statutory caps. See 8 CFR 214.2(h)(8)(ii)(B). USCIS rejects and 
    returns cap-subject petitions not randomly selected, with filing 
    fees, unless a petition is found to be a duplicate filing.
    ---------------------------------------------------------------------------
    
    viii. Other Nonimmigrant Categories
        Less than 20 commenters requested that DHS authorize employment for 
    the dependents of principals in other employment-based nonimmigrant 
    classifications, such as dependents of O-1 nonimmigrants (O-3) \19\ and 
    TN nonimmigrants (TD).\20\ One commenter specifically requested 
    employment authorization for children of O-1 and TN nonimmigrant highly 
    skilled workers who are on the path to lawful permanent residence.
    ---------------------------------------------------------------------------
    
        \19\ An O-3 nonimmigrant is a dependent of an O-1 nonimmigrant. 
    The O-1 nonimmigrant classification applies to individuals who 
    possess extraordinary ability in the sciences, arts, education, 
    business, or athletics, or who have a demonstrated record of 
    extraordinary achievement in the motion picture or television 
    industry and have been recognized nationally or internationally for 
    those achievements. See INA section 101(a)(15)(O), 8 U.S.C. 
    1101(a)(15)(O); 8 CFR 214.2(o).
        \20\ A TD nonimmigrant is a dependent of a TN nonimmigrant. The 
    TN nonimmigrant classification permits qualified Canadian and 
    Mexican citizens to seek temporary entry into the United States to 
    engage in business activities at a professional level. See INA 
    section 214(e), 8 U.S.C. 1184(e); 8 CFR 214.6.
    ---------------------------------------------------------------------------
    
        DHS declines to expand eligibility for employment authorization in 
    this rule to the dependents of principals with other nonimmigrant 
    classifications. DHS is narrowly tailoring the expansion of eligibility 
    for employment authorization to meet several policy objectives, 
    including the goal of helping U.S. businesses retain highly skilled H-
    1B nonimmigrants who are on the path to lawful permanent residence. DHS 
    may consider expanding employment authorization to other dependent 
    nonimmigrant categories in the future.
        Moreover, there are significant differences between the H-1B 
    nonimmigrant classification on the one hand, and the O-1 and TN 
    classifications on the other, that inform the Department's decision to 
    limit applicability of this rule to only H-4 dependent spouses. The 
    spouses of H-1B nonimmigrants, for example, generally have greater need 
    for the benefits of this rule than the spouses of O-1 nonimmigrants. O-
    1 nonimmigrants typically apply for LPR status through the EB-1 
    immigrant visa preference category, which has not historically suffered 
    from visa backlogs. This allows the spouses of O-1 nonimmigrants to 
    generally obtain employment authorization much more quickly than the 
    spouses of H-1B nonimmigrants who typically seek LPR status through the 
    EB-2 and EB-3 preference categories, which have historically been 
    subject to lengthy backlogs.
    
    [[Page 10293]]
    
        The spouses of TN nonimmigrants are also not similarly situated to 
    the spouses of H-1B nonimmigrants. Unlike H-1B status, TN status stems 
    from an international agreement--the North American Free Trade 
    Agreement (NAFTA)--negotiated between the United States and foreign 
    nations. As such, changes to that status implicate reciprocal 
    international trade and foreign policy concerns that are generally not 
    implicated with respect to the H-1B classification and are beyond the 
    scope of this rulemaking.
    3. Comments Opposing the Rule
        Approximately ten percent of commenters opposed extending 
    employment authorization to the class of H-4 dependent spouses 
    described in the proposed rule. Many of these commenters were generally 
    concerned that the rule would result in the displacement of U.S. 
    workers; exacerbation of the nation's unemployment rate; and a decrease 
    in wages. All comments discussing economic issues, both in opposition 
    to and in support of the proposed rule, are discussed in Part III, 
    Public Comments on Proposed Rule, Section D, Comments on Executive 
    Orders 12866 and 13563.
        Commenters also questioned whether the change in the proposed rule 
    is actually necessary in light of other provisions of U.S. immigration 
    law. Other commenters suggested that the proposed rule would have an 
    adverse impact on other immigration categories or nationalities. DHS 
    has carefully considered these concerns. But for the reasons that 
    follow, DHS has decided to finalize the rule as proposed.
    i. Change Unnecessary
        More than 20 commenters believed that because current immigration 
    laws provide the ability for H-4 dependent spouses to change status to 
    an employment-authorized category, the proposed rule would not provide 
    any additional incentives for H-1B nonimmigrants to remain in the 
    United States and continue to pursue LPR status. One commenter stated 
    that most of the comments posted on www.regulations.gov failed to 
    indicate that potential immigrants have abandoned the immigration 
    process, or have decided against coming to the United States in the 
    first place, because their spouses would not be authorized to work.
        DHS disagrees with these commenters and believes that the changes 
    made by this rule are warranted. DHS acknowledges that thousands of 
    commenters who voiced support for the rule did not provide specific 
    reasons for their support, including whether H-1B nonimmigrants were 
    abandoning their applications for LPR status. DHS notes, however, that 
    more than 60 commenters specifically indicated they planned to abandon 
    their pursuit of lawful permanent residence without the changes in the 
    proposed rule. Approximately, two dozen commenters stated that they 
    left the United States because the current regulations preclude H-4 
    dependent spouses from engaging in employment. And several U.S. 
    employers submitted comments in which they describe the loss of valued 
    H-1B nonimmigrants because of the restriction on spousal employment. 
    These employers noted that the changes in the proposed rule would help 
    to align America's immigration laws with the policies of other 
    countries that allow spousal employment. DHS agrees with these 
    employers and other commenters who supported the proposed rule, and the 
    Department believes that this change will support U.S. businesses and 
    strengthen U.S. competitiveness. DHS also believes that this rule will 
    fulfill its intended purpose and encourage certain highly skilled H-1B 
    nonimmigrants to remain in the United States and continue to pursue 
    their efforts to become LPRs.
    ii. Impact on Other Categories or Nationalities
        Less than 80 commenters suggested that the proposed rule would harm 
    persons in other nonimmigrant categories or with certain nationalities. 
    A few commenters who had changed status from H-4 status to F-1 
    nonimmigrant student status, for example, thought the rule was unfair 
    because F-1 nonimmigrant graduates who had exhausted their Optional 
    Practical Training had no path to employment authorization except 
    through another principal nonimmigrant classification, such as the H-1B 
    classification. These commenters argued that the rule would put recent 
    F-1 nonimmigrant graduates at a disadvantage because they would have to 
    go through the H-1B petition process whereas the qualifying H-4 
    dependent spouses would be eligible for an EAD authorizing employment 
    without regard to employer.
        DHS appreciates these commenters' concerns but does not believe 
    that the changes made by this rule will adversely affect other 
    classifications or specific nationalities. Rather, DHS expects that 
    this rule will help to partially alleviate the adverse impact of 
    oversubscription of certain chargeability categories in the EB-2 and 
    EB-3 categories on certain H-1B nonimmigrants and their families, 
    without negatively impacting others. DHS has narrowly tailored this 
    rule to provide employment authorization to only those H-4 dependent 
    spouses of H-1B nonimmigrants who have taken active steps to become 
    LPRs. The rule does not affect any other nonimmigrant category, nor 
    does the rule make distinctions among persons of different 
    nationalities. Moreover, as noted throughout this rule, DHS expects 
    that because of the small size of the newly eligible class of workers, 
    the rule should not negatively impact the employment of persons in 
    other nonimmigrant categories. DHS also notes that the H-4 dependent 
    spouses at issue may already obtain employment authorization when they 
    file their applications to adjust status; this rule simply accelerates 
    the timeframe in which they may enter the labor market.
    iii. Impact on Universities
        Several commenters suggested that because it is common for H-4 
    dependent spouses to change status to F-1 nonimmigrant student status 
    to enhance their marketability and use their time productively, 
    universities may lose revenue from decreased enrollment if such H-4 
    dependent spouses are allowed to work pursuant to this rule. DHS 
    carefully considered but declined to address these concerns. First, 
    this rule does not directly regulate U.S. institutions of higher 
    education or its students (including F-1 nonimmigrants), and any 
    impacts on university enrollments or revenues would be an indirect 
    impact of this rule. Second, the rule merely expands the choices 
    available to H-4 dependent spouses. While the rule expands the ability 
    for such individuals to obtain employment authorization, it does 
    nothing to restrict or otherwise change their ability to engage in 
    study to the extent authorized by the Department in accordance with 
    law. Third, even if the opportunity for employment authorization may 
    mean that fewer H-4 dependent spouses eventually choose to enroll as 
    nonimmigrant students, it is not clear how this rule could 
    significantly impact revenues at colleges and universities considering 
    the relatively small number of people impacted by this rule.\21\ 
    Indeed, other
    
    [[Page 10294]]
    
    commenters noted that this rule could actually help university 
    enrollment, as the increased ability for H-1B nonimmigrant families to 
    generate income would further enable the H-1B nonimmigrant and H-4 
    dependent spouse to engage in higher education or contribute towards 
    the higher education of their children. Consequently, it is uncertain 
    if the net impact of this rule is to reduce overall enrollment and 
    revenues, given the offsetting effects of this rule suggested by 
    commenters. Commenters did not provide statistics or data demonstrating 
    that this rule will have significant adverse effects on U.S. 
    institutions of higher education or that DHS should limit employment 
    opportunities for H-4 dependent spouses to protect revenue sources. 
    Finally, DHS notes that it received several supportive comments both 
    from representatives of the academic community and also from self-
    identified H-4 dependent spouses who viewed this rulemaking as 
    positive.
    ---------------------------------------------------------------------------
    
        \21\ According to Department of Education statistics, 
    approximately 21 million students are expected to enroll in 
    postsecondary degree-granting institutions in fall 2014. See http://nces.ed.gov/fastfacts/display.asp?id=372. Given the relatively large 
    student population enrolled in American schools and the narrow 
    population impacted by this rule, DHS believes this rule would not 
    significantly impact net college enrollments.
    ---------------------------------------------------------------------------
    
    4. Comments Requesting a More Restrictive Policy
        Slightly over 180 commenters suggested limiting employment 
    authorization to a more restricted class of H-4 nonimmigrants. For the 
    reasons discussed below, DHS has determined that it will not adopt the 
    commenters' suggestions in this final rule.
    i. Certain Skills or Sectors
        A number of commenters recommended granting employment 
    authorization only to H-4 dependent spouses who have certain skills or 
    work in certain sectors of the economy. Other commenters requested that 
    DHS limit employment authorization under the rule to H-4 dependent 
    spouses who hold advanced degrees from U.S. universities or have 
    degrees in certain subjects, such as subjects in STEM fields. Some 
    commenters were concerned that eligible H-4 dependents will be able to 
    compete across all occupations, not just skilled professions.
        DHS declines to restrict employment authorization eligibility to H-
    4 dependent spouses with certain skills or degrees. A primary purpose 
    of this rule is to help U.S. employers retain H-1B nonimmigrant 
    employees who have demonstrated the intent to become LPRs, which would 
    provide substantial benefits to these employers and the U.S. economy. 
    This rule is intended to provide this incentive to H-1B nonimmigrants 
    regardless of the academic backgrounds of their H-4 dependent spouses. 
    Limiting the rule to benefit only H-1B nonimmigrants whose H-4 
    dependent spouses have certain skills or hold certain educational 
    credentials would undermine the effectiveness of this rule.
    ii. Reciprocity
        A number of commenters recommended limiting employment 
    authorization to H-4 dependent spouses who are from countries that 
    authorize employment for spouses of U.S. citizens in a similar 
    immigration status abroad (i.e., when there is reciprocity). DHS's 
    focus in this rule, however, is on retaining H-1B nonimmigrants for the 
    benefit of U.S. employers and the U.S. economy, including by helping 
    businesses minimize expensive disruptions caused by the departures from 
    the United States of certain highly skilled H-1B nonimmigrants. As 
    noted above, limiting the rule to affect only a subset of H-1B 
    nonimmigrant families based on reciprocity would weaken the rule's 
    efficacy. Moreover, reciprocity would implicate foreign policy 
    considerations that are outside the scope of this rulemaking.
    iii. Limiting Employment Authorization Based on AC21 Extensions
        A few commenters requested that DHS extend eligibility for 
    employment authorization only to the H-4 dependent spouses of H-1B 
    nonimmigrants who are beneficiaries of AC21 extensions. DHS discussed 
    this option in the proposed rule. The Department appreciates this 
    suggestion, but believes that also extending employment authorization 
    to the spouses of H-1B nonimmigrants who are the beneficiaries of 
    approved Form I-140 petitions more effectively accomplishes the goals 
    of this rulemaking. For the benefit of U.S. businesses and the U.S. 
    economy, DHS believes the rule should provide incentives for those 
    workers who have established certain eligibility requirements and 
    demonstrated intent to reside permanently in the United States and 
    contribute to the U.S. economy. Extending employment authorization to 
    H-4 dependent spouses of H-1B nonimmigrants with either approved Form 
    I-140 petitions or H-1B status granted pursuant to sections 106(a) and 
    (b) of AC21 encourages a greater number of professionals with high-
    demand skills to remain in the United States. Moreover, by tying 
    eligibility for employment authorization to approved Form I-140 
    petitions, DHS is reaching the H-4 dependent spouses of H-1B 
    nonimmigrants granted status under section 104(c) of AC21. DHS thus 
    declines to exclude from this rule the spouses of H-1B nonimmigrants 
    who have approved Form I-140 petitions.
    
    C. Legal Authority To Extend Employment Authorization to Certain H-4 
    Dependent Spouses
    
        Over 40 commenters questioned DHS's legal authority to extend 
    employment authorization to certain H-4 dependent spouses, often 
    emphasizing that employment for spouses of L and E nonimmigrants is 
    expressly authorized by statute.\22\ Several commenters argued that it 
    was the role of Congress, not the Executive Branch, to create 
    immigration laws.
    ---------------------------------------------------------------------------
    
        \22\ See INA section 214(c)(2)(E), (e)(6); 8 U.S.C. 
    1184(c)(2)(E), (e)(6).
    ---------------------------------------------------------------------------
    
        DHS disagrees with the view that this rule exceeds the Secretary's 
    authority. In the INA, Congress provided the Secretary with broad 
    authority to administer and enforce the immigration laws. The Secretary 
    is expressly authorized to promulgate rules and ``perform such other 
    acts as he deems necessary for carrying out his authority'' based upon 
    considerations rationally related to the immigration laws. INA section 
    103(a)(3), 8 U.S.C. 1103(a)(3). Congress also provided the Secretary 
    with the more specific statutory authority to set by regulation the 
    conditions of nonimmigrant admission. INA section 214(a), 8 U.S.C. 
    1184(a). These provisions grant the Secretary broad discretion to 
    determine the most effective way to administer the laws. See Narenji v. 
    Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979) (observing that the INA 
    ``need not specifically authorize each and every action taken by the 
    Attorney General [(now Secretary of Homeland Security)], so long as his 
    action is reasonably related to the duties imposed upon him''); see 
    also Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (noting 
    ``broad discretion exercised by immigration officials'' under the 
    immigration laws).
        More specifically, section 274A(h)(3)(B) of the INA, 8 U.S.C. 
    1324a(h)(3)(B), recognizes that employment may be authorized by statute 
    or by the Secretary. See Arizona Dream Act Coalition v. Brewer, 757 
    F.3d 1053, 1062 (9th Cir. 2014) (``Congress has given the Executive 
    Branch broad discretion to determine when noncitizens may work in the 
    United States.''); Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 
    1990) (describing the authority recognized by INA 274A(h)(3) as 
    ``permissive'' and largely ``unfettered''). Thus, the commenters' 
    arguments that DHS lacks authority to grant employment eligibility to 
    H-4 dependent spouses because Congress
    
    [[Page 10295]]
    
    has not specifically required it by statute are misplaced. The fact 
    that Congress has directed the Secretary to authorize employment to 
    specific classes of aliens (such as the spouses of E and L 
    nonimmigrants) does not mean that the Secretary is precluded from 
    extending employment authorization to other classes of aliens by 
    regulation as contemplated by section 274A(h)(3)(B) of the INA, 8 
    U.S.C. 1324a(h)(3)(B).\23\
    ---------------------------------------------------------------------------
    
        \23\ Moreover, in the few instances in which Congress has 
    determined to limit employment authorization for certain classes of 
    aliens, it has done so expressly. See INA section 208(d)(2), 8 
    U.S.C. 1158(d)(2) (``An [asylum] applicant who is not otherwise 
    eligible for employment authorization shall not be granted such 
    authorization prior to 180 days after the date of filing of the 
    application for asylum.''); INA section 236(a)(3), 8 U.S.C. 
    1226(a)(3) (restricting employment authorization for aliens who have 
    been arrested and are in removal proceedings unless the alien is a 
    lawful permanent resident ``or otherwise would (without regard to 
    removal proceedings) be provided work authorization''); INA section 
    241(a)(7), 8 U.S.C. 1231(a)(7) (providing that alien who has been 
    ordered removed is ineligible for work authorization unless the 
    Secretary finds that the alien cannot be removed for lack of a 
    country willing to receive the alien or ``the removal of the alien 
    is otherwise impracticable or contrary to the public interest'').
    ---------------------------------------------------------------------------
    
    D. Comments on the Analysis of Executive Orders 12866 and 13563
    
    1. Comments Related to Labor Market Impacts
        Of the approximately ten percent of commenters who generally 
    opposed the rule, a majority of those commenters asserted that allowing 
    eligible H-4 dependent spouses to receive employment authorization 
    would have negative economic impacts. Chief among these concerns was 
    the impact of the proposed rule on the U.S. labor market. Many 
    commenters believed that the proposed rule would increase competition 
    for jobs; exacerbate the nation's unemployment rate; drive down wages; 
    and otherwise negatively impact native U.S. workers. A few commenters 
    also suggested that allowing H-4 dependent spouses to enter the labor 
    market would negatively impact highly skilled H-1B nonimmigrants.
        DHS appreciates these viewpoints and has carefully considered the 
    potential for negative labor market impacts throughout this rulemaking. 
    DHS affirms its belief expressed in the proposed rule that any labor 
    market impacts will be minimal. As a preliminary matter, this 
    regulatory change applies only to the H-4 dependent spouses of H-1B 
    nonimmigrants who have actively taken certain steps to obtain LPR 
    status. As such, the rule simply accelerates the timeframe by which 
    these spouses are able to enter the U.S. labor market. Importantly, the 
    rule does not require eligible H-4 spouses to submit an application for 
    an EAD, nor does the granting of an EAD guarantee that H-4 spouses will 
    obtain employment. Further, the relatively small number of people 
    affected by the rule limits any impact the rule may have on the labor 
    market. Although DHS, in this final rule, increased its estimate of the 
    number of H-4 dependent spouses who might benefit from the rule, the 
    maximum number of such spouses who could request employment 
    authorization and actually enter the labor market in the initial year 
    (the year with the largest number of potential applicants) represents 
    only 0.1156 percent of the overall U.S. civilian labor force. This 
    increased estimate does not change the Department's conclusion that 
    this rule will have minimal labor market impacts.
        Moreover, with respect to the potential that this rule and the 
    policy goals of retaining certain highly skilled H-1B nonimmigrants may 
    cause native-worker displacement and wage reduction, DHS notes that 
    there is a large body of research that supports the findings that 
    immigration of highly skilled workers is beneficial to the U.S. economy 
    and labor market in the long-term. For example, several commenters 
    provided studies that refuted arguments that highly skilled immigrants 
    are used for ``cheap labor,'' \24\ while many others offered evidence 
    that showed the positive effects of immigration, and particularly high-
    skilled immigration, on the U.S. labor market.\25\ These commenters 
    pointed to a Congressional Budget Office report and academic study \26\ 
    that showed that immigration generally produces a modest increase in 
    the wages of native-born workers in the long-run, and that any negative 
    economic effects--in the form of wages--are largely felt by other 
    immigrant workers with similar education and skill levels. DHS also 
    notes that the Immigration and Nationality Act's employment-related 
    antidiscrimination provision, enforced by the Department of Justice's 
    Office of Special Counsel for Immigration-Related Unfair Employment 
    Practices, prohibits employment discrimination in hiring, firing and 
    recruiting and referring for a fee based on citizenship status. In 
    general, employers may not reject U.S. workers in favor of nonimmigrant 
    visa holders based on citizenship status. INA section 274B(a)(1)(B), 8 
    U.S.C. 1324b(a)(1)(B).
    ---------------------------------------------------------------------------
    
        \24\ For example, commenters cited to the following studies in 
    refuting the claim that H-1B workers are a source of cheap labor: 
    Lofstrom, M. & Hayes, J., ``H-1Bs: How Do They Stack Up to US Born 
    Workers? IZA Discussion Paper No. 6259'' (Dec. 2011), available at 
    http://ssrn.com/abstract=1981215; Rothwell, J. & Ruiz, N. ``H-1B 
    Visas and the STEM Shortage: A Research Brief'' (May 11, 2013), 
    available at http://ssrn.com/abstract=2262872.
        \25\ Commenters cited to the following to highlight positive 
    effects of highly skilled immigration: National Foundation for 
    American Policy, ``H-1B Visas and Job Creation'' (Mar. 2008), 
    available at http://www.nfap.com/pdf/080311h1b.pdf.
        \26\ Commenters cited to the following studies in highlighting 
    the effects of immigration: Congressional Budget Office, ``The 
    Economic Impact of S. 744, the Border Security, Economic 
    Opportunity, and Immigration Modernization Act,'' June 18, 2013, 
    available at http://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf; Mathews, D., ``No, the CBO Report 
    Doesn't Mean Immigration Brings Down Wages,'' June 19, 2013, 
    available at http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/19/no-the-cbo-report-doesnt-mean-immigration-brings-down-wages/; 
    Ottaviano, G. & Peri, G., Rethinking the Effects of Immigration on 
    Wages (March 2010), available at http://economics.ucdavis.edu/people/gperi/site/papers/rethinking-the-effect-of-immigration-on-wages.
    ---------------------------------------------------------------------------
    
        From a labor market perspective, it is important to note that there 
    are not a fixed number of jobs in the United States. Basic principles 
    of labor market economics recognize that individuals not only fill 
    jobs, but also stimulate the economy and create demand for jobs through 
    increased consumption of goods and services. On this point, 
    approximately 2,600 commenters thought that the regulation as proposed 
    will stimulate the U.S. economy through the spillover effects 
    associated with dual-income households, thus leading to increased 
    spending throughout the economy, greater investments in real estate, 
    the potential for job creation, and increased tax revenue. Relatedly, 
    other commenters expressed their belief that the rule will bolster U.S. 
    competitiveness, economic strength and innovation. A few commenters 
    noted that the proposal will enhance the ability of U.S. businesses to 
    attract and retain highly skilled immigrants, resulting in potential 
    economic gains to U.S. companies and the U.S. economy.
        In addition, commenters also highlighted several social benefits of 
    the proposed rule, including: Family unification; overall family 
    financial security and stability; providing a means for H-4 dependent 
    spouses to be financially independent; and significantly aiding the H-
    1B nonimmigrant and his or her family in integrating into American 
    culture and communities. DHS appreciates these comments and agrees that 
    the rule will provide economic and social benefits to the H-1B 
    nonimmigrant worker and his or her family as they wait to obtain LPR 
    status.
    
    [[Page 10296]]
    
        Finally, a few commenters suggested that allowing H-4 dependent 
    spouses to enter the labor market would negatively impact the job 
    prospects of highly skilled H-1B nonimmigrants. These commenters 
    generally suggested, without providing empirical support, that by 
    allowing H-4 dependent spouses to have an EAD, U.S. employers will 
    prefer to hire such individuals rather than to go through the 
    additional effort of hiring an H-1B nonimmigrant. DHS appreciates these 
    concerns but lacks data on the skillsets or educational levels of H-4 
    dependent spouses to indicate that they will take jobs that are 
    typically held by highly skilled H-1B nonimmigrants. Nor, as noted 
    above, is the U.S. labor market static; individuals who supply labor 
    also create demand for labor through increased consumption and other 
    spending. The fact that this rule provides employment authorization 
    only to H-4 dependent spouses who are tied to an H-1B nonimmigrant who 
    is sufficiently on the path to LPR status further mitigates the 
    possibility that this rule will cause employers to hire H-4 dependent 
    spouses over H-1B nonimmigrants. DHS anticipates that employers will 
    continue to fully utilize the H-1B program and does not believe that 
    this rule will adversely affect the job prospects of H-1B 
    nonimmigrants.
    2. Comments on the Volume Estimate and Methodology
        Of the ten percent of commenters who opposed the rule, many felt 
    that the Department's estimates of the potential eligible population 
    were too low. Two commenters suggested that DHS employ a different 
    methodology to arrive at the estimated number of likely eligible H-4 
    dependent spouses. One commenter provided highlighted excerpts of the 
    Yearbook of Immigration Statistics, as published by the DHS Office of 
    Immigration Statistics, containing statistics on individuals who had 
    obtained LPR status under employment-based preference categories. The 
    commenter highlighted the total number of spouses who had adjusted 
    status to lawful permanent residence and the total number of 
    individuals who adjusted to LPR status under the first through third 
    employment-based preference categories. DHS assumes that the commenter 
    was suggesting that DHS simply apply that historical average to 
    estimate the number of H-4 dependent spouses who will be eligible to 
    apply for employment authorization under this rule.
        DHS appreciates this response and carefully considered this 
    approach. However, that approach fails to account for those H-1B 
    nonimmigrants and their families who are currently in the backlog 
    waiting for immigrant visas. Furthermore, that approach would also 
    overstate the likely number of H-4 dependent spouses who would be 
    eligible to apply for employment authorization under this rule. That is 
    so because the approach does not account for the proportion of 
    employment-based adjustment applicants who are in H-1B status as 
    compared to those adjusting from another nonimmigrant status. Moreover, 
    not all spouses of H-1B nonimmigrants are currently in H-4 nonimmigrant 
    status. For these reasons, DHS disagrees with the commenters' suggested 
    approach to estimating the volume of H-4 dependent spouses who will be 
    eligible to apply for employment authorization under this rule. 
    Estimating the eligible population by taking into account the backlog 
    of H-1B nonimmigrants who have approved I-140 petitions but are unable 
    to adjust status due to a lack of available immigrant visas, along with 
    the estimated future flow of newly eligible spouses, is a more accurate 
    methodology for estimating the number of H-4 dependent spouses whom 
    this rule may impact.
        DHS has carefully considered ways to estimate the volume of 
    potential H-4 dependent spouses who will be eligible to apply for 
    employment authorization under this rule. Based on comments received 
    that questioned whether the estimated volume of such spouses was too 
    low, DHS reviewed and updated its estimates in preparing this final 
    rule. DHS acknowledges that there is some uncertainty in this analysis, 
    but believes its methodology offers the best available estimates.
        Although the estimate of H-4 dependent spouses who could be 
    eligible to apply for employment authorization increased in this final 
    rule,\27\ the findings and impacts of the rule remain essentially the 
    same. In the first year, if all 179,600 H-4 dependent spouses who DHS 
    estimates may be eligible under the rule were to enter the U.S. labor 
    market, that population would still constitute a small fraction of one 
    percent of the overall U.S. civilian workforce. And many of these H-4 
    dependent spouses will be able to seek employment even without this 
    rule, as immigrant visa numbers become available and H-1B nonimmigrant 
    families become eligible to file for adjustment of status. As noted 
    previously, this rule simply accelerates the timeframe in which certain 
    H-4 dependent spouses are able to enter the labor market.
    ---------------------------------------------------------------------------
    
        \27\ Please refer to Section IV.C. of this document for a deeper 
    discussion of the final estimate of the impact of this rule.
    ---------------------------------------------------------------------------
    
        Notwithstanding the revised volume estimates, the basis for this 
    rule, as discussed throughout the proposed rule and this final rule, 
    remains accurate. DHS is taking this action to further incentivize H-1B 
    nonimmigrants and their families to continue to wait and contribute to 
    the United States through an often lengthy waiting period for an 
    immigrant visa to become available. DHS expects that these actions will 
    also benefit U.S. employers by decreasing the labor disruptions that 
    occur when H-1B nonimmigrants abandon the permanent resident process.
    3. Comments on Specific Costs and Benefits Discussed in the Analysis
        One commenter believed that the proposed rule overstated the 
    potential costs and understated the benefits of the rule. Specifically, 
    the commenter alleged that DHS' estimates for cost per applicant were 
    exaggerated because DHS included the monetized opportunity costs 
    associated with applying for employment authorization. That same 
    commenter also believed that DHS failed to stress the economic and 
    social benefits of the rule. Another commenter believed that the 
    proposed rule failed to acknowledge the economic losses incurred by the 
    current inability of H-4 dependent spouses to work.
        DHS has carefully considered these comments and does not believe 
    that the potential costs and benefits were either under- or 
    overestimated. In the proposed rule, DHS highlighted the economic 
    benefits to both the H-4 dependent spouse and the H-1B family unit that 
    would accrue from additional income. In addition, in the proposed rule 
    DHS discussed the societal integration benefits that would accrue to 
    the H-4 dependent spouse and the H-1B family that would come from the 
    spouse's ability to participate in the U.S. labor market. DHS disagrees 
    with comments that the application costs were inflated because we 
    assigned a valuation to the H-4 dependent spouse's time. DHS 
    acknowledged in the proposed rule that these spouses do not currently 
    work. DHS decided to use the minimum wage as a reasonable proxy to 
    estimate the opportunity costs of their time. DHS disagrees with the 
    questionable notion that just because these spouses are not currently 
    able to participate in the labor market, they do not face opportunity 
    costs and/or assign valuation in deciding how to allocate their time. 
    As such, DHS utilized a reasonable approach in assigning value to their 
    time.
    
    [[Page 10297]]
    
    E. Comments on the Application for Employment Authorization
    
        Over 180 commenters raised issues related to employment 
    authorization, including filing procedures, premium processing, 
    validity periods, renewals, evidentiary documentation, concurrent 
    filings for extension of stay/change of status, automatic extensions of 
    employment authorization, and filing fees. DHS carefully considered 
    these comments and addresses them below.
    1. Streamlined or Modernized Filing Procedures
        Commenters urged DHS and USCIS to utilize streamlined or modernized 
    filing procedures for Applications for Employment Authorization (Forms 
    I-765) submitted by H-4 dependent spouses. USCIS is moving from a 
    paper-based application and adjudication process to an electronic one 
    through the development of an Electronic Immigration System (``USCIS 
    ELIS''). When complete, USCIS ELIS will allow customers to 
    electronically view their applications, petitions or requests, receive 
    electronic notification of decisions, and electronically receive real-
    time case status updates. This is a global effort affecting all USCIS 
    benefit request programs and, therefore, is outside the scope of this 
    rulemaking. DHS will notify the public when USCIS is prepared to begin 
    accepting electronic filings of Applications for Employment 
    Authorization by eligible H-4 dependent spouses. DHS will begin 
    accepting Applications for Employment Authorization (Forms I-765) 
    submitted by certain H-4 dependent spouses on the effective date of 
    this rule, May 26, 2015. This effective date is intended to prevent an 
    overlap of H-1B cap season and an initial filing surge of Forms I-765 
    under 8 CFR 274a.12(c)(26). As a result, USCIS will be able to 
    implement this program in a manner that will avoid prolonged delays of 
    processing other petition and application types, in particular those H-
    1B petitions seeking an FY 2016 cap number. It will also allow USCIS to 
    maintain excellent customer service for all USCIS stakeholders, 
    including H-1B employers, H-1B nonimmigrants and their families.
    2. Employment Authorization Document (Form I-766) Validity Period
        Nine commenters requested that DHS issue the Employment 
    Authorization Document (EAD) (Form I-766) with a validity period that 
    matches the H-4 dependent spouse's status. Related to this request, 
    another commenter requested a three-year validity period to match the 
    H-1B and H-4 authorized periods of admission. DHS agrees with 
    commenters that to reduce possible cases of unauthorized employment, 
    the EAD validity period should match the H-4 dependent spouse's length 
    of authorized admission. Thus, in issuing an EAD to an otherwise 
    eligible H-4 dependent spouse, DHS generally will authorize a validity 
    period that matches the H-4 spouse's remaining authorized period of 
    admission, which may be as long as three years in cases not involving 
    DOD-related services. This policy will ensure that USCIS does not grant 
    employment authorization to an H-4 dependent spouse who is not eligible 
    for the benefit. It will also likely reduce the number of times that H-
    4 dependent spouses may need to request renewal of their employment 
    authorization.
        One commenter requested that DHS issue a probationary EAD with a 
    six-to twelve-month validity period, at the end of which the H-4 
    dependent spouse would have to prove that he or she is working legally 
    and paying taxes. DHS declines to adopt this suggestion. The EAD that 
    DHS will issue H-4 dependent spouses pursuant to this rule is evidence 
    of employment authorization to lawfully work in the United States for 
    any employer. DHS is not aware of any risk factors--such as fraud, 
    criminal activity, or threats to public safety or national security--
    associated with H-4 dependent spouses as a whole that would support 
    imposing a six-month validity period. Moreover, the administrative 
    burden resulting from additional adjudications and the possibility of 
    gaps in employment authorization, together with the burdens this 
    limitation would place on the H-4 dependent spouse, make imposing a 
    six-month validity period unreasonable.
        Regarding the suggestion that H-4 dependent spouses should be 
    required to prove that they pay taxes as a condition of obtaining or 
    maintaining work authorization, DHS does not require proof of payment 
    of taxes for any of the classes of aliens eligible to file the 
    Application for Employment Authorization. As a preliminary matter, 
    issuance of an EAD does not require an H-4 dependent spouse to work. 
    Nor does issuance of the EAD guarantee that an H-4 dependent spouse 
    will find employment and therefore be required to pay taxes on any 
    income earned through such employment. Moreover, DHS is not aware of 
    any evidence, and the commenter provided none, indicating that H-4 
    dependent spouses are likely to engage in tax evasion or other tax-
    related unauthorized activity if they are provided employment 
    authorization pursuant to this rule. At the same time, USCIS would face 
    significant operational burdens if it were required to collect and 
    verify tax documents for each H-4 dependent spouse seeking employment 
    authorization under this rule.
    3. EAD Renewals
        Five commenters requested that DHS allow H-4 dependent spouses to 
    apply for EAD renewals up to six months in advance, in part to align 
    with the time frame permitted for filing of the Petition for a 
    Nonimmigrant Worker (Form I-129) to extend the H-1B nonimmigrant's 
    status. As explained below in Section III.E.5, DHS will permit those H-
    4 dependent spouses seeking to concurrently file their Form I-765 
    application with their Application to Extend/Change Nonimmigrant Status 
    (Form I-539), and if applicable their spouses' Form I-129 petition, to 
    file up to six months in advance of the requested start date. Please 
    note, however, that USCIS will not adjudicate the Form I-765 
    application until a determination has been made on the underlying Form 
    I-539 application and/or Form I-129 petition. The time at which an H-4 
    dependent spouse will be eligible to apply for an EAD renewal will 
    vary, as it is dependent on actions taken by the H-1B nonimmigrant, 
    including actions to maintain and extend his or her H-1B status, as 
    well as the H-4 dependent spouse's status.
    4. Acceptable Evidentiary Documentation
        Several commenters submitted comments related to the Application 
    for Employment Authorization (Form I-765) and to the evidence required 
    to be submitted by applicants with the application. One commenter asked 
    DHS to make changes to assist applicants in obtaining acceptable 
    evidentiary documentation. This commenter requested that USCIS provide 
    the H-4 dependent spouse, upon request, with his or her immigration 
    case related paperwork, such as the original underlying petition. 
    Another commenter requested that DHS provide clarification about the 
    evidentiary standard relating to AC21 eligibility.
        In conjunction with the proposed rule, DHS proposed conforming 
    revisions to the Form I-765 application to add H-4 dependent spouses 
    described in this rule to the classes of aliens eligible to file the 
    form. Concurrent with publication of this final rule, DHS has made 
    further changes to the form. DHS has made clarifying changes to improve 
    readability of the form instructions describing the types of
    
    [[Page 10298]]
    
    documentary evidence that may be submitted in support of the 
    application. As further discussed in Part III.F.1 relating to marriage 
    fraud concerns, DHS also has revised the regulatory text in 8 CFR 
    214.2(h)(9)(iv) and the form instructions to clarify that supporting 
    documentary evidence includes proof of marriage. Finally, DHS has 
    revised the form itself to include a check box that self-identifies the 
    applicant as an eligible H-4 dependent spouse. DHS believes that adding 
    the check box for H-4 dependent spouses to the form will aid in the 
    efficient processing of the form by facilitating USCIS's ability to 
    match the application with related petitions that are integral to 
    determining the H-4 dependent spouse's eligibility for employment 
    authorization, as discussed below in Part III.E.5.
        DHS appreciates the concerns regarding the difficulty that some 
    applicants may face in obtaining the necessary documentation to support 
    the Form I-765 application. DHS's revisions in this final rule to 8 CFR 
    214.2(h)(9)(iv) and the instructions to Form I-765 provide for 
    flexibility in the types of evidentiary documentation that may be 
    submitted by applicants. If the H-4 dependent spouse cannot submit the 
    primary evidence listed in the form instructions, he or she may submit 
    secondary evidence, such as an attestation that lists information about 
    the underlying Form I-129 or Form I-140 petition, so that an 
    adjudicator may be able to match the Form I-765 application with the 
    underlying petition(s). Such information may include the petition 
    receipt number, the beneficiary's name and/or the petitioner's name. If 
    secondary evidence does not exist or cannot be obtained, an applicant 
    may demonstrate this and submit two or more sworn affidavits by non-
    parties who have direct knowledge of the relevant events and 
    circumstances. This approach should address the situation where the H-4 
    dependent spouse is unable to access the immigration paperwork relating 
    to the H-1B nonimmigrant. Notwithstanding the option for submitting 
    secondary evidence, if an applicant prefers to obtain the primary 
    evidence listed in the form instructions from USCIS for submission with 
    the Form I-765, the applicant may make a request for documents 
    maintained by USCIS by following established procedures for making such 
    requests under the Freedom of Information Act (FOIA). See http://www.uscis.gov/about-us/freedom-information-and-privacy-act-foia/how-file-foia-privacy-act-request/how-file-foiapa-request. DHS declines to 
    establish new procedures for making document requests that are 
    applicable only to applicants who are H-4 dependent spouses. The 
    established FOIA process for making document requests promotes 
    fairness, uniformity, and administrative efficiency, while ensuring 
    that privacy protections are enforced.
        Finally, in response to the comment on the evidentiary standard 
    that will apply to H-4 dependent spouses, DHS notes that such spouses 
    will have to meet the same burden of proof (i.e., preponderance of the 
    evidence) as other applicants for employment authorization. See, e.g. , 
    Matter of Chawathe, 25 I. & N. Dec. 369, 376 (AAO 2010) (describing 
    ``preponderance of the evidence'' standard).
    5. Concurrent Filings
        A couple of commenters requested that DHS allow eligible H-4 
    dependent spouses to file the Application for Employment Authorization 
    (Form I-765) concurrently with an Immigrant Petition for Alien Worker 
    (Form I-140) or an Application to Extend/Change Nonimmigrant Status 
    (Form I-539). For the reasons that follow, DHS agrees to allow Form I-
    765 to be concurrently filed with Form I-539, but not with Form I-140.
        DHS currently permits an H-4 dependent spouse to file Form I-539 
    concurrently with a Petition for a Nonimmigrant Worker (Form I-129) 
    filed on behalf of the H-1B nonimmigrant. This provides several 
    efficiencies, as the status of the H-4 dependent spouse is based on the 
    resolution of the H-1B nonimmigrant's Form I-129 petition and both 
    forms may be processed at the same USCIS locations. For similar 
    reasons, DHS has decided to permit H-4 dependent spouses to file 
    Applications for Employment Authorization (Forms I-765) concurrently 
    with certain related benefit requests: Applications to Extend/Change 
    Nonimmigrant Status (Forms I-539) and, if applicable, with Petitions 
    for a Nonimmigrant Worker (Form I-129). As noted previously, DHS has 
    decided to issue EADs to eligible H-4 dependent spouses with validity 
    dates that match their authorized periods of admission. That period of 
    admission is determined as part of the Form I-539 application 
    adjudication, which, in turn, is largely dependent on the H-1B 
    nonimmigrant's period of admission determined as part of the Form I-129 
    adjudication. Because adjudication of those forms are interrelated, and 
    because they are submitted to the same USCIS locations, DHS has 
    determined that it is reasonable to allow those forms to be 
    concurrently filed.
        DHS, however, cannot extend the courtesy of concurrent filing with 
    Form I-140 immigrant visa petitions filed on behalf of the H-1B 
    nonimmigrant. Presently, Forms I-129 and I-539 are not processed at the 
    same USCIS locations in which Form I-140 petitions are adjudicated. As 
    a result, each form must be filed separately at the USCIS Service 
    Center location having jurisdiction over the relevant form. 
    Additionally, determining the spousal relationship between the H-1B 
    nonimmigrant and the H-4 dependent spouse is not a necessary part of 
    the adjudication of the Form I-140 petition.\28\ To permit concurrent 
    filing of Form I-765 with Form I-140 would undermine DHS' efforts to 
    facilitate efficient processing of both benefit requests.
    ---------------------------------------------------------------------------
    
        \28\ Unlike the I-140 adjudication, adjudication of Form I-539 
    requires evidence of such spousal relationship.
    ---------------------------------------------------------------------------
    
        DHS also notes that it cannot adjudicate a Form I-765 filed by an 
    H-4 dependent spouse until the Department has made a determination 
    regarding the H-1B nonimmigrant's eligibility for H-1B status under 
    sections 106(a) and (b) of AC21 or until a Form I-140 petition has been 
    approved. Prior to adjudicating such Form I-765, DHS must also make a 
    determination that the H-4 dependent spouse remains eligible for H-4 
    status. As such, DHS amends the current rule to clarify that the 90-day 
    clock specified in 8 CFR 274a.13(d) authorizing DHS to issue interim 
    employment authorization if the Form I-765 is not adjudicated within 90 
    days is not triggered until necessary eligibility determinations have 
    been made on the underlying nonimmigrant status for the H-1B 
    nonimmigrant and the H-4 dependent spouse. If the H-4 dependent 
    spouse's employment authorization is based on a favorable eligibility 
    determination relating to the nonimmigrant status of either the H-1B 
    nonimmigrant or the H-4 dependent spouse, the 90-day clock is triggered 
    when that eligibility determination is made. Alternatively, if 
    employment authorization is based on a favorable eligibility 
    determination relating to the nonimmigrant status of both the H-1B 
    nonimmigrant and the H-4 dependent spouse, the 90-day clock is not 
    triggered until an eligibility determination is made on both. 
    Accordingly, DHS is making conforming amendments to 8 CFR 
    214.2(h)(9)(iv) and 8 CFR 274a.13(d) in this final rule and the 
    instructions to Form I-765. These amendments permit H-4
    
    [[Page 10299]]
    
    dependent spouses under this rule to concurrently file their Form I-765 
    with related benefit requests, specified in the form instructions to 
    include their Application to Extend/Change Nonimmigrant Status (Form I-
    539), and if applicable, their spouse's Form I-129 petition. As a 
    result of the amendments, the 90-day clock described in 8 CFR 
    274a.13(d) would also not start until after a determination has been 
    made on the underlying H-1B status, H-4 status, or both.
    6. Premium Processing
        Three commenters requested premium processing service for H-4 
    dependent spouses seeking to file Applications for Employment 
    Authorization (Forms I-765). These commenters highlighted the benefit 
    that the extra premium processing fees could bring to USCIS. DHS 
    appreciates these comments, but has decided not to extend premium 
    processing to Form I-765 applications filed by H-4 dependent spouses in 
    conjunction with this rulemaking. DHS currently offers premium 
    processing service for certain employment-based petitions and 
    applications, including H-1B, L, and E nonimmigrant worker petitions 
    and certain EB-1, EB-2 and EB-3 immigrant visa petitions. Extending 
    premium processing to Form I-765 applications, however, presents 
    operational concerns and would be inconsistent with procedural 
    realities for USCIS. The agency, for example, would be unable to comply 
    with premium processing requirements on any Form I-765 application that 
    is contingent on the adjudication of a concurrently filed Application 
    to Extend/Change Nonimmigrant Status (Form I-539). Due to these and 
    other operational concerns, DHS will not extend premium processing 
    service to Form I-765 applications, including applications filed by H-4 
    dependent spouses under this rule at this time.
    7. Automatic Extensions of Work Authorization
        One commenter requested an automatic extension of work 
    authorization for 240 days after an H-4 dependent spouse's EAD expires. 
    DHS, however, is concerned with improperly granting employment 
    authorization to an H-4 dependent spouse who is ineligible for it. As 
    the validity of the H-4 dependent spouse's eligibility for employment 
    authorization will be tied to his or her authorized period of 
    admission, automatic extensions of employment authorization without 
    review of the underlying extension of stay applications for the H-1B 
    nonimmigrant and H-4 dependent spouse could result in employment 
    authorization being extended to individuals who will eventually be 
    determined ineligible for this benefit. DHS thus declines to adopt this 
    recommendation.
        To avoid any potential gaps in employment authorization when 
    seeking an extension of employment authorization, DHS recommends that 
    the H-4 dependent spouse timely file all necessary applications. DHS's 
    policy to permit concurrent filing of Forms I-539, I-129, and I-765 
    should also help H-4 dependent spouses avoid gaps in employment 
    authorization, as these forms may be filed concurrently up to six 
    months in advance of date of need.
    8. Filing Fees
        Several commenters submitted remarks on the filing fees without 
    expressing support for or opposition to the fees. Additionally, some 
    commenters asserted that USCIS would benefit from an increased volume 
    of fees, and another commenter requested that the U.S. Government help 
    pay for immigration-related application fees.
        DHS is bound by statutes and regulations governing its collection 
    of fees in connection with immigration benefit requests. See INA 
    section 286(m)-(p), 8 U.S.C. 1356(m)-(p); 8 CFR 103.7. DHS generally 
    must set application fees at a level that enables it to recover the 
    full costs of providing services, including the costs of similar 
    services provided without charge to certain other applicants. But DHS 
    may offer assistance with respect to immigration-related application 
    fees in the form of fee waivers. Discretionary fee waivers are provided 
    on a case-by-case basis when the party requesting the benefit is unable 
    to pay the prescribed fee and the waiver request is consistent with the 
    underlying benefit being requested. See 8 CFR 103.7(c)(1).
        For the reasons that follow, DHS believes that it would be unlikely 
    that H-4 dependent spouses would be unable to pay the prescribed fee 
    for the Application for Employment Authorization (Form I-765). By 
    definition, H-4 dependent spouses are married to H-1B nonimmigrants who 
    are employed and earning a salary of at least the prevailing wage in 
    their occupation. H-4 dependent spouses will thus generally be unable 
    to establish that they cannot pay the fee prescribed for the Form I-765 
    application. For these reasons, DHS declines to establish a general fee 
    waiver for the Form I-765 filed by eligible H-4 dependent spouses under 
    this rule. See 8 CFR 103.7(d). USCIS will consider fee waiver requests 
    on a case-by-case basis. See 8 CFR 103.7(c)(3)(viii). As noted above, 
    given the nature of the H-1B nonimmigrant's employment, a showing of 
    inability to pay as required by the regulation would be the exception 
    rather than the rule.
    9. Possible Restrictions on EADs Issued to H-4 Dependent Spouses
        A few commenters recommended imposing certain restrictions on 
    employment authorization issued to H-4 dependent spouses, such as: 
    Creating a cap on the number of EADs that could be granted to H-4 
    dependent spouses; prohibiting the H-1B nonimmigrant and H-4 dependent 
    spouse from having the same employer or working in the same occupation; 
    prohibiting employers from replacing an American veteran with an H-1B 
    nonimmigrant; restricting H-4 work authorization to certain employers; 
    creating a National Registry of Jobs that H-4 dependent spouses would 
    be allowed to apply for; forcing individuals to surrender their foreign 
    passports when they obtain U.S. citizenship as a way of proving 
    allegiance; allocating EADs in a proportionate manner based on 
    nationality; and requiring H-4 dependent spouses to pay for training 
    programs for U.S. citizens.
        DHS declines to incorporate the suggested restrictions into this 
    final rule. A primary purpose of this rule is to assist U.S. employers 
    in retaining certain highly skilled H-1B nonimmigrants. Allowing 
    certain H-4 dependent spouses to apply for employment authorization 
    removes a disincentive that currently undermines this goal. Imposing 
    the suggested restrictions, such as numerical caps or per-country 
    quotas, would limit the effectiveness and purpose of this rule. 
    Additionally, DHS believes that EADs provide inherent protections that 
    mitigate the risk of abuse and exploitation. Because these EADs may be 
    used to work for any employer, workers are free to find new employment 
    at any point during the EAD's validity, including if they are 
    dissatisfied with their pay or working conditions. Finally, DHS 
    reiterates that the individuals being provided employment authorization 
    under this rule belong to a class of aliens that is already likely to 
    enter the U.S. labor market with EADs. In sum, DHS does not believe 
    that extending eligibility for employment authorization to H-4 
    dependent spouses will lead to the broad exploitation of EADs.
    
    [[Page 10300]]
    
    10. Circular EADs
        One commenter noted that this rule could lead to ``circular EADs,'' 
    whereby spouses who are both eligible for H-1B status may switch status 
    (H-1B to H-4 and vice versa) so that one spouse may maintain an EAD at 
    all times. This commenter conveyed the concern that H-1B nonimmigrants 
    might initiate the primary steps towards permanent residence, then 
    switch back and forth between H-1B and H-4 statuses to stay in the 
    United States forever.
        DHS acknowledges that H-1B nonimmigrants will be able to change 
    status, as permitted by law. DHS believes it is extremely unlikely, 
    however, that an H-1B nonimmigrant will seek to remain in the United 
    States forever by switching between nonimmigrant statuses as a result 
    of this rule. The rule is intended to benefit those H-1B nonimmigrants 
    who are already well on the path to lawful permanent residence and, 
    therefore, seek to remain in the United States permanently on this 
    basis. Although the waiting period for an immigrant visa may be 
    lengthy, there is an end date as indicated on the Department of State's 
    Visa Bulletin. So any incentive to switch between statuses indefinitely 
    would be weighed by the nonimmigrant against the benefits of obtaining 
    LPR status, including the ability to work in the United States without 
    being tied to a specific employer and the ability of the H-4 dependent 
    spouse to work without needing to periodically apply and pay for an 
    EAD. Moreover, with lawful permanent residency, an individual is 
    eligible to apply for U.S. citizenship, generally after five years, and 
    to petition for relatives to immigrate to the United States, benefits 
    that are not available to persons with H-1B or H-4 status.
    11. Form I-765 Worksheets
        One commenter expressed concern that H-4 dependent spouses would 
    need to demonstrate economic need for employment because of the 
    reference in the Paperwork Reduction Act section of the proposed rule 
    to the Form I-765 Worksheet (Form I-765WS). DHS is clarifying that H-4 
    dependent spouses are not required to establish economic need for 
    employment authorization. H-4 dependent spouses are not required to 
    submit Form I-765WS with their Application for Employment Authorization 
    (Form I-765). DHS has corrected this error in the form instructions to 
    the Application for Employment Authorization (Form I-765).
    12. Other Related Issues
        Several commenters sought guidance on issues tangential to the 
    issuance of employment authorization to H-4 dependent spouses. For 
    example, one commenter asked for clarification on the type of status 
    that an H-4 dependent spouse will receive when readmitted into the 
    United States after traveling abroad. Another commenter wanted to know 
    if an H-4 dependent spouse could work from home in the United States 
    for his or her native country employer on the native country salary. 
    Because this rulemaking is limited to extending eligibility for 
    employment authorization to H-4 dependent spouses and does not make 
    changes to admission requirements or conditions of employment 
    authorization, DHS considers these questions outside the scope of this 
    rulemaking. Please consult the USCIS Web site at www.uscis.gov or 
    contact USCIS Customer Service at 1-800-375-5283 for current guidance.
        Finally, several commenters requested clarification about EAD 
    processing and adjudication times. USCIS posts current processing times 
    on its Web site and encourages interested stakeholders to consult 
    www.uscis.gov if they have questions about adjudication times.\29\
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        \29\ For example, as of January 26, 2015, the processing time at 
    the California Service Center (CSC) for the Application for 
    Employment Authorization, Form I-765, ranged from 3 weeks to 3 
    months depending on the basis for the Form I-765. See https://dashboard.uscis.gov/index.cfm?formtype=12&office=2&charttype=1.
    ---------------------------------------------------------------------------
    
    F. Fraud and Public Safety Concerns
    
        Over 100 commenters raised concerns related to fraud and public 
    safety, including issues related to resume fraud, marriage fraud, 
    participation by individuals with criminal records, unauthorized 
    employment, and employer abuse in the H-1B program. Strict consequences 
    are already in place for immigration-related fraud and criminal 
    activities, including inadmissibility to the United States, mandatory 
    detention, ineligibility for naturalization, and removability. See, 
    e.g., INA sections 101(f), 212(a)(2) & (a)(6), 236(c), 237(a)(1)(G) & 
    (a)(2), 318; 8 U.S.C. 1101(f), 1182(a)(2) & (a)(6), 1226(c), 
    1227(a)(1)(G) & (a)(2), 1429. Nevertheless, the Department welcomes 
    suggestions to further prevent fraud and protect public safety in the 
    implementation of its programs. The Department carefully considered 
    these comments and addresses them below.
    1. Falsifying Credentials and Marriage Fraud
        Over 100 commenters anticipated that certain H-4 dependent spouses 
    would falsify their resumes or qualifications or marry for immigration 
    purposes. With respect to potential resume fraud, DHS notes that 
    eligibility for employment authorization for H-4 dependent spouses will 
    not depend in any way on their professional or educational 
    qualifications or their resumes. It will be up to potential employers 
    to verify the qualifications of H-4 dependent spouses they may be 
    seeking to hire. This concern is therefore outside the scope of this 
    rulemaking.
        With respect to marriage fraud, DHS is revising 8 CFR 
    214.2(h)(9)(iv) to clarify that establishing eligibility for employment 
    authorization under this rule requires evidence of the spousal 
    relationship between the H-4 dependent spouse and the H-1B 
    nonimmigrant. DHS is also making conforming revisions to the form 
    instructions to Form I-765 to require that H-4 dependent spouses submit 
    proof of marriage to the H-1B nonimmigrant with the form. USCIS 
    officers are specially trained to recognize indicia of fraud, including 
    marriage fraud and falsified documents, and review other immigration 
    petitions for these circumstances as well. If such fraud is suspected, 
    the relevant USCIS officer may refer the case to the local fraud unit 
    for further inquiry. USCIS may also submit leads related to significant 
    fraud to U.S. Immigration and Customs Enforcement for criminal 
    investigation. DHS believes that current fraud-detection training, 
    mechanisms for detecting and investigating fraud, and fraud-related 
    penalties are sufficient for deterring and detecting marriage fraud in 
    this context.
    2. Prohibition Related to Felony Charges and Convictions
        Two commenters requested a prohibition against participation by 
    anyone charged with, awaiting trial for, or convicted of a felony. DHS 
    appreciates the commenters' concerns over public safety and notes that 
    the eligibility for employment authorization extended by this rule to 
    certain H-4 dependent spouses is discretionary. DHS officers will 
    consider any adverse information--including criminal convictions, 
    charges, and other criminal matters--on a case-by-case basis.
    3. Unauthorized Employment
        A few commenters thought that this rule would help curb any 
    unauthorized employment in which H-4 dependent spouses are currently 
    engaging. Additionally, several commenters raised concerns that this 
    rule could encourage illegal immigration and increase the number of 
    undocumented workers in
    
    [[Page 10301]]
    
    the United States. DHS disagrees that this rule may encourage illegal 
    immigration. DHS believes that this rule will provide options to 
    certain H-4 dependent spouses allowing them to engage in authorized 
    employment. Individuals eligible for employment authorization under 
    this rule must have been granted H-4 status and must remain in such 
    lawful status before they can be granted employment authorization 
    pursuant to this rule. An H-4 dependent spouse who engaged in 
    unauthorized employment would not have been maintaining lawful H-4 
    status and therefore would be ineligible for this new benefit. 
    Therefore, the Department does not believe that this rule will 
    incentivize unauthorized employment or any other illegal activities.
    4. Employer Abuse of H-1B Nonimmigrants and H-4 Dependent Spouses
        A number of commenters raised concerns over potential employer 
    abuse of H-1B nonimmigrants and H-4 dependent spouses. These concerns 
    included failure to pay prevailing wages and demanding long hours 
    without adequate compensation. DHS appreciates these concerns and 
    maintains that employers must not intimidate, threaten, restrain, 
    coerce, blacklist, discharge or otherwise discriminate or take unlawful 
    action against any employee. Violators face severe penalties. See INA 
    212(n)(2)(C)(iv), 8 U.S.C. 1182(n)(2)(C)(iv). DHS takes seriously any 
    potential abuse of H-1B nonimmigrants and H-4 dependent spouses and 
    encourages any workers who feel that their rights have been violated by 
    their employers to file a complaint with DOL or another appropriate 
    entity, such as the Equal Employment Opportunity Commission.\30\ Any 
    concerns raised by commenters regarding H-1B nonimmigrants and worker 
    protections in the H-1B program, however, are outside the scope of this 
    rulemaking.
    ---------------------------------------------------------------------------
    
        \30\ An individual can submit a Nonimmigrant Worker Information 
    Form, Form WH-4, with DOL. This form was authorized by the American 
    Competitiveness and Workforce Improvement Act (ACWIA) of 1998. See 
    INA sections 212(n)(2)(G), 8 U.S.C. 1182(n)(2)(G). It is available 
    on-line at http://www.dol.gov/whd/forms/wh-4.pdf.
    ---------------------------------------------------------------------------
    
    G. General Comments
    
        Over 300 commenters submitted feedback about general immigration 
    issues. A few commenters expressed support for or opposition to 
    immigration. Comments ranged from requesting DHS to discontinue all 
    types of immigration to underscoring the need for comprehensive reform 
    of the immigration laws to general support of immigration. DHS is 
    charged with administering the immigration laws enacted by Congress, 
    and only Congress can change those laws. The comments described above 
    are therefore outside the scope of this rulemaking. DHS, however, is 
    committed to comprehensive immigration reform that creates a workable 
    system that strengthens border security, improves the U.S. economy, 
    unites families, and preserves national security and public safety.
        Additionally, fewer than a dozen commenters objected to the ability 
    of non-U.S. citizens to submit comments on the proposed rule. As noted 
    in that rule, DHS welcomed comments from all interested parties and did 
    not place any restrictions based on citizenship or nationality.
    
    H. Modifications to the H-1B Program and Immigrant Visa Processing
    
    1. H-1B Visa Program
    i. Circumventing the H-1B Cap
        A few commenters suggested that employers may try to exploit this 
    regulation by using it to avoid the H-1B numerical cap and hiring more 
    foreign specialty occupation workers than permitted by the statute. As 
    a preliminary matter, DHS cannot agree with the premise that hiring an 
    individual with general (rather than employer-specific) employment 
    authorization constitutes circumvention of the cap on H-1B 
    nonimmigrants. This is particularly so when such employment 
    authorization is contingent on being married to an individual who was 
    selected in the H-1B program and is subject to the cap. Moreover, 
    commenters provided no evidence or data that would support the 
    contention that this rule will be used by employers and H-4 dependent 
    spouses to circumvent the cap. For example, DHS does not have, and 
    commenters did not provide, data on the skillsets or educational levels 
    of H-4 dependent spouses to indicate that they will generally qualify 
    for jobs that are typically held by highly skilled H-1B nonimmigrants. 
    Finally, it is unlikely that highly skilled individuals who could 
    independently qualify under the H-1B program will instead opt to enter 
    the United States as H-4 dependent spouses and subject themselves to 
    lengthy periods of unemployment with the intent to circumvent the H-1B 
    cap. As noted previously, this rule provides eligibility for employment 
    authorization only to those H-4 dependent spouses who are married to 
    certain H-1B nonimmigrants who have taken substantial steps, generally 
    taking many years, towards obtaining permanent residence. Such an 
    individual may eventually obtain a job for which an H-1B nonimmigrant 
    could possibly have qualified, but the Department does not consider 
    this a circumvention of the H-1B cap.
    ii. Elimination or Modification of the H-1B program
        More than a dozen commenters requested that the H-1B program be 
    terminated. An approximately equal number of commenters requested that 
    the H-1B visa cap be eliminated or modified in various ways. Several 
    commenters requested that DHS increase the number of visas available, 
    other commenters asked DHS to eliminate the H-1B visa cap, while others 
    recommended decreasing the number of visas available.
        DHS cannot address the commenters' suggestions in this rulemaking. 
    The H-1B program is required by statute, which also sets the current 
    cap on H-1B visa numbers. Congressional action is thus required to 
    address the commenters' concerns, as the Secretary does not have the 
    authority to eliminate the program or change the visa cap without 
    congressional action. The suggested changes are thus outside the scope 
    of this rulemaking.
        Additionally, one commenter requested that DHS allow for more 
    flexible filing times for H-1B visas. This request would require DHS to 
    amend its H-1B regulations, which currently provide that an H-1B 
    petition may not be filed or approved earlier than six months before 
    the date of actual need for the beneficiary's services. See 8 CFR 
    214.2(h)(9)(i)(B). This rulemaking, however, does not make substantive 
    changes to the H-1B program or its regulations. The request is thus 
    outside the scope of this rulemaking.
    iii. More Flexible Change of Status From H-1B to H-4
        One commenter requested a modification of the H-1B program to allow 
    a family member who has been in the United States for more than five 
    years to choose between H-1B and H-4 status. To some extent, H-1B 
    nonimmigrants currently have this option. An H-4 dependent spouse may 
    seek classification as an H-1B nonimmigrant if an employer files a 
    petition on his or her behalf. As long as one of the spouses maintains 
    H-1B status, the other is eligible for H-4 status. However, the 
    underlying H-1B status is connected to the need of a U.S.
    
    [[Page 10302]]
    
    employer. To the extent that the commenter is suggesting a change to 
    this requirement such that both spouses could be present in the United 
    States in H-4 status, such a change would require congressional action 
    and, therefore, is beyond the scope of this rulemaking.
    iv. Applying for H-1B Status and Cap Exemption
        One commenter recommended that H-4 dependent spouses be allowed to 
    apply for H-1B visas and be exempt from the cap. This final rule does 
    not prohibit H-4 dependent spouses from seeking and obtaining H-1B 
    status. Once an H-4 spouse seeks to change to H-1B status, he or she is 
    subject to annual limitations on H-1B nonimmigrants. Only Congress can 
    exempt groups of individuals from the statutory H-1B numerical 
    limitations. This request is therefore beyond the scope of this 
    rulemaking.
    v. Dependents of G Principal Nonimmigrants
        One commenter requested that DHS change its G visa regulations to 
    allow dependents of principal G visa holders to more freely obtain a 
    different visa classification (such as H-1B classification). Such a 
    change is outside the scope of this rulemaking.
    2. Immigrant Visa Processing and Adjustment of Status
        Over 30 commenters requested the elimination of the worldwide 
    quotas for immigrant visas.\31\ One commenter requested allowing the 
    submission and receipt of applications for adjustment of status when 
    visas are not available, and another requested that the rule include 
    provisions to expedite the permanent residence process for the EB-2 and 
    EB-3 preference categories. Several commenters requested that USCIS 
    grant EADs to LPR applicants while they wait for their immigrant visas. 
    Another commenter requested that USCIS grant one skilled worker visa 
    per eligible family unit (rather than per each individual family 
    member), for the purpose of reducing backlogs. One commenter requested 
    that USCIS establish a procedure by which those in the process of 
    seeking LPR status could ``pre-register'' their intention to apply to 
    adjust status.
    ---------------------------------------------------------------------------
    
        \31\ Section 201(d) of the INA, 8 U.S.C. 1151(d), prescribes the 
    worldwide level of employment-based immigrants. Section 203(b) of 
    the INA, 8 U.S.C. 1153(b), prescribes the preference allocation for 
    employment-based immigrants. Section 202 of the INA, 8 U.S.C. 1152, 
    prescribes per country levels for family-sponsored and employment-
    based immigrants.
    ---------------------------------------------------------------------------
    
        DHS appreciates feedback from the public regarding possible changes 
    to the immigration laws and the system for obtaining LPR status. DHS, 
    however, will not respond to these comments as they do not address 
    changes to the regulations made by this rulemaking and are therefore 
    outside the scope of this rulemaking.
    
    I. H-1B Nonimmigrant's Maintenance of Status
    
        Several commenters asked for more information about the effect that 
    an H-1B nonimmigrant's loss of employment or change of employer would 
    have on the H-4 dependent spouse's employment authorization. As stated 
    in the proposed rule, the H-4 dependent's status is tied to the H-1B 
    nonimmigrant's status. Thus, if the H-1B nonimmigrant fails to maintain 
    status, the H-4 dependent spouse also fails to maintain status and 
    would therefore no longer be eligible for employment authorization. 
    Under current regulations, DHS may seek to revoke employment 
    authorization if, prior to the expiration date of such authorization, 
    any condition upon which it was granted has not been met or no longer 
    exists. See 8 CFR 274a.14(b).
    
    J. Environmental Issues
    
        In the proposed rule, DHS requested comments relating to the 
    environmental effects that might arise from the proposed rule. Nine 
    commenters submitted related feedback, noting general environmental 
    issues that come with an increased population. DHS appreciates these 
    comments but notes that the vast majority of the population immediately 
    affected by the rule is already in the United States and has been here 
    for a number of years while waiting for their immigrant visas. The H-4 
    dependent spouses affected by this rule generally will eventually be 
    able to seek employment even without this rule, as immigrant visa 
    numbers become available and H-1B nonimmigrant families become eligible 
    to file for adjustment of status. As noted previously, this rule simply 
    accelerates the timeframe in which these individuals are able to enter 
    the labor market.
    
    K. Reporting
    
        A few commenters requested more information about how DHS will 
    monitor the outcome of the final rule, such as by tracking EAD 
    adjudications for H-4 dependent spouses and publishing annual reports. 
    DHS maintains statistics on all immigration benefit programs and will 
    monitor H-4 EAD adjudications and include relevant information in its 
    annual reports in accordance with current reporting protocols.
    
    L. Implementation
    
        Several hundred commenters requested that the rule be implemented 
    as soon as possible. One commenter requested that a sunset provision be 
    included in the rule. At the end of the sunset period, the commenter 
    recommended that DHS evaluate the program, and, if the results are 
    positive, expand it. DHS believes that a general sunset provision would 
    not be practicable or fair as it would require DHS to provide different 
    periods of employment authorization to H-4 dependent spouses depending 
    on when they become eligible to apply. Further, DHS considers a sunset 
    provision to be at odds with the rule's purpose, which is to retain 
    highly skilled workers who often have a multi-year wait before being 
    eligible to apply for permanent residence.
        With respect to implementation of this rule, DHS must consider the 
    30-day effective date requirement at 5 U.S.C. 553(d) as well as USCIS's 
    implementation requirements. Based on these factors, DHS has decided 
    that this rule will be effective 90 days from the date of publication, 
    May 26, 2015.
    
    IV. Statutory and Regulatory Requirements
    
    A. Unfunded Mandates Reform Act of 1995
    
        The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
    other things, to curb the practice of imposing unfunded Federal 
    mandates on State, local, and tribal governments. Title II of the Act 
    requires each Federal agency to prepare a written statement assessing 
    the effects of any Federal mandate in a proposed or final agency rule 
    that may result in a $100 million or more expenditure (adjusted 
    annually for inflation) in any one year by State, local, and tribal 
    governments, in the aggregate, or by the private sector. The value 
    equivalent of $100,000,000 in 1995 adjusted for inflation to 2014 
    levels by the Consumer Price Index for All Urban Consumers is 
    $155,000,000.
        This rule does not exceed the $100 million expenditure in any one 
    year when adjusted for inflation ($155,000,000 in 2014 dollars), and 
    this rulemaking does not contain such a mandate. The requirements of 
    Title II of the Act, therefore, do not apply, and DHS has not prepared 
    a statement under the Act.
    
    [[Page 10303]]
    
    B. Small Business Regulatory Enforcement Fairness Act of 1996
    
        This rule is not a major rule as defined by section 804 of the 
    Small Business Regulatory Enforcement Act of 1996. This rule will not 
    result in an annual effect on the economy of $100 million or more, a 
    major increase in costs or prices, or significant adverse effects on 
    competition, employment, investment, productivity, innovation, or on 
    the ability of United States companies to compete with foreign-based 
    companies in domestic and export markets.
    
    C. Executive Orders 12866 and 13563
    
        Executive Orders 12866 and 13563 direct agencies to assess the 
    costs and benefits of available regulatory alternatives and, if 
    regulation is necessary, to select regulatory approaches that maximize 
    net benefits (including potential economic, environmental, public 
    health and safety effects, distributive impacts, and equity). Executive 
    Order 13563 emphasizes the importance of quantifying both costs and 
    benefits, of reducing costs, of harmonizing rules, and of promoting 
    flexibility. This rule has been designated a ``significant regulatory 
    action'' under section 3(f) of Executive Order 12866. Accordingly, the 
    rule has been reviewed by the Office of Management and Budget.
        DHS is amending its regulations to extend eligibility for 
    employment authorization to certain H-4 dependent spouses of H-1B 
    nonimmigrants who either: (1) Are principal beneficiaries of an 
    approved Immigrant Petition for Alien Worker (Form I-140); or (2) have 
    been granted H-1B status under sections 106(a) and (b) of AC21.
    1. Summary
        Currently, USCIS does not issue work authorization to H-4 dependent 
    spouses. To obtain work authorization, the H-4 dependent spouse 
    generally must have a pending Application to Register Permanent 
    Resident Status or Adjust Status or have changed status to another 
    nonimmigrant classification that permits employment. AC21 provides for 
    an authorized period of admission and employment authorization beyond 
    the typical six-year limit for H-1B nonimmigrants who are seeking 
    permanent residence. This final rule will extend eligibility for 
    employment authorization to H-4 dependent spouses where: the H-1B 
    nonimmigrant is the principal beneficiary of an approved Form I-140 
    petition; or the H-1B nonimmigrant has been granted status pursuant to 
    sections 106(a) and (b) of AC21.
        DHS has updated its estimate of the population of H-4 dependent 
    spouses who will be impacted by the rule. DHS estimates the current 
    population of H-4 dependent spouses who will be eligible for employment 
    authorization could initially be as many as 179,600 after taking into 
    account the backlog of H-1B nonimmigrants who have approved I-140 
    petitions, or who are likely to have such petitions approved, but who 
    are unable to adjust status because of the lack of immigrant visas. For 
    ease of analysis, DHS has assumed that those H-4 dependent spouses in 
    the backlog population will file for employment authorization in the 
    first year of implementation. DHS estimates the flow of new H-4 
    dependent spouses who could be eligible to apply for initial employment 
    authorization in subsequent years may be as many as 55,000 annually. 
    Even with the increased estimate of H-4 dependent spouses who could be 
    eligible to apply for employment authorization, DHS still affirms in 
    the initial year (the year with the largest number of eligible 
    applicants) that the rule will result in much less than a one percent 
    change in the overall U.S. labor force.
        DHS is unable to determine and does not include in this analysis 
    the filing volume of H-4 dependent spouses who will need to renew their 
    employment authorization documents under this rule as they continue to 
    wait for immigrant visas. Eligible H-4 dependent spouses who wish to 
    apply for employment authorization must pay the $380 filing fee to 
    USCIS, provide two passport-style photos, and incur the estimated 3-
    hour-and-25-minute opportunity cost of time burden associated with 
    filing an Application for Employment Authorization (Form I-765). After 
    monetizing the expected opportunity cost and combining it with the 
    filing fee \32\ and the estimated cost associated with providing two 
    passport-style photos, an eligible H-4 dependent spouse applying for 
    employment authorization will face an anticipated total cost of 
    $436.18.
    ---------------------------------------------------------------------------
    
        \32\ The filing fee is assumed to be a reasonable approximation 
    for USCIS's costs of processing the application. See INA section 
    286(m), 8 U.S.C. 1356(m).
    ---------------------------------------------------------------------------
    
        The maximum anticipated annual cost to eligible H-4 dependent 
    spouses applying for initial employment authorization in Year 1 is 
    estimated at $78,337,928 (non-discounted), and $23,989,900 (non-
    discounted) in subsequent years. The 10-year discounted cost of this 
    rule to eligible H-4 dependent spouses applying for employment 
    authorization is $257,403,789 at 3 percent and $219,287,568 at 7 
    percent. Table 2 shows the maximum anticipated estimated costs over a 
    10-year period of analysis for the estimate of 179,600 applicants for 
    initial employment authorization, and the 55,000 applicants expected to 
    file for initial employment authorization annually in subsequent years.
    
      Table 2--Total Costs and Benefits of Initial Employment Authorization for Certain H-4 Dependent Spouses 10-Yr
                                          Present Value Estimates at 3% and 7%
                                                       [$Millions]
    ----------------------------------------------------------------------------------------------------------------
                                                                               Sum of Years 2-10  Total over 10-year
                                                            Year 1 estimate     (55,000 filers    period of analysis
                                                           (179,600 filers)        annually)               *
    ----------------------------------------------------------------------------------------------------------------
    3% Discount Rate:
        Total Costs Incurred by Filers @3%..............               $76.1              $181.3              $257.4
    7% Discount Rate
        Total Costs Incurred by Filers @7%..............                73.2               146.1               219.3
                                                         -----------------------------------------------------------
    
    [[Page 10304]]
    
     
    Qualitative Benefits................................  This rule is intended to remove a disincentive to pursuing
                                                          LPR status due to the potentially long wait for employment-
                                                          based immigrant visas for many H-1B nonimmigrants and
                                                          their family members. This rule will encourage H-1B
                                                          nonimmigrants who have already taken steps to become LPRs
                                                          to not abandon their efforts because their H-4 dependent
                                                          spouses are unable to work. By encouraging H-1B
                                                          nonimmigrants to continue in their pursuit of becoming
                                                          LPRs, this rule would minimize disruptions to petitioning
                                                          U.S. employers. Additionally eligible H-4 dependent
                                                          spouses who participate in the labor market will benefit
                                                          financially. DHS also anticipates that the socioeconomic
                                                          benefits associated with permitting H-4 spouses to
                                                          participate in the labor market will assist H-1B families
                                                          in integrating into the U.S. community and economy.
    ----------------------------------------------------------------------------------------------------------------
    * Note: Totals may not sum due to rounding.
    
    2. Purpose of the Rule
        According to the most recently released reports prepared by the DHS 
    Office of Immigration Statistics, in Fiscal Year (FY) 2013 a total of 
    990,553 persons became LPRs of the United States.\33\ Most new LPRs (54 
    percent) were already living in the United States and obtained their 
    LPR status by applying for adjustment of status within the United 
    States.
    ---------------------------------------------------------------------------
    
        \33\ See DHS Office of Immigration Statistics, Annual Flow 
    Report, U.S. Lawful Permanent Residents: 2013 (May 2014), available 
    at http://www.dhs.gov/sites/default/files/publications/ois_lpr_fr_2013.pdf.
    ---------------------------------------------------------------------------
    
        Employment-based immigrant visas accounted for approximately 16 
    percent of the total number of persons obtaining LPR status, and 30 
    percent of total LPRs who adjusted status in FY 2013. In FY 2013, there 
    were a total of 161,110 LPRs admitted under employment-based preference 
    visa categories. Of these 161,110 individuals, ``priority workers'' 
    (first preference or EB-1) accounted for 24 percent; ``professionals 
    with advanced degrees'' (second preference or EB-2) accounted for 39 
    percent; and ``skilled workers, professionals, and other workers'' 
    (third preference or EB-3) accounted for 27 percent.\34\
    ---------------------------------------------------------------------------
    
        \34\ Id.
    ---------------------------------------------------------------------------
    
        Based on historical trends, H-1B nonimmigrants seeking to adjust 
    status to lawful permanent residence will most likely adjust under the 
    EB-2 and EB-3 preference categories, with a much smaller amount 
    qualifying under the EB-1 preference category. As of January 2015, the 
    employment-based preference categories are ``current'' and have visas 
    available, except for Chinese and Indian nationals seeking admission 
    under the second preference category and individuals of all 
    nationalities seeking admission under the third preference 
    category.\35\ Thus, the employment-based categories under which H-1B 
    nonimmigrants typically qualify to pursue LPR status are the very 
    categories that are currently oversubscribed.\36\
    ---------------------------------------------------------------------------
    
        \35\ See Department of State Bureau of Consular Affairs, 
    December 2014 Visa Bulletin (Nov. 7, 2014), available at http://travel.state.gov/content/dam/visas/Bulletins/visabulletin_January2015.pdf.
        \36\ See Wadhwa, Vivek, et al., Intellectual Property, the 
    Immigration Backlog, and a Reverse Brain-Drain--America's New 
    Immigrant Entrepreneurs, Part III, Center for Globalization, 
    Governance & Competitiveness (Aug. 2007), available at http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf. Note: The report examined the 2003 cohort of employment-based 
    immigrants and showed that 36.8 percent of H-1B nonimmigrants that 
    adjust status do so through the EB-3 category and another 28 percent 
    do so through the EB-2 category, while only 4.62 percent adjust 
    through the EB-1 category.
    ---------------------------------------------------------------------------
    
        In many cases, the timeframe associated with seeking lawful 
    permanent residence is lengthy, extending well beyond the six-year 
    period of stay allotted by the H-1B nonimmigrant visa classification. 
    As a result, retention of highly educated and highly skilled 
    nonimmigrant workers can become challenging for U.S. employers. 
    Retaining highly skilled persons who intend to acquire LPR status is 
    important when considering the contributions they make to the U.S. 
    economy, including advances in research and development and other 
    entrepreneurial endeavors, which are highly correlated with overall 
    economic growth and job creation. By some estimates, immigration was 
    responsible for one quarter of the explosive growth in patenting in 
    past decades, and these innovations have the potential to contribute to 
    increasing U.S. gross domestic product (GDP).\37\ In addition, over 25 
    percent of tech companies founded in the United States from 1995 to 
    2005 had a key leader who was foreign-born.\38\ Likewise, the Kauffman 
    Foundation reported that immigrants were more than twice as likely to 
    start a business in the United States as the native-born in 2012, and a 
    report by the Partnership for a New American Economy found that more 
    than 40 percent of Fortune 500 companies in 2010 were founded by 
    immigrants or their children.\39\ Additionally, in March 2013, the 
    House Committee on the
    
    [[Page 10305]]
    
    Judiciary held a hearing on Enhancing American Competitiveness Through 
    Skilled Immigration, providing some members of the business community 
    with an opportunity to provide their perspectives on immigration. The 
    witnesses represented various industries, but underscored a unified 
    theme: Skilled immigrants are contributing significantly to U.S. 
    economic competitiveness and it is in our national interest to retain 
    these talented individuals.\40\
    ---------------------------------------------------------------------------
    
        \37\ See generally Jennifer Hunt & Marjolaine Gauthier-Loiselle, 
    How Much Does Immigration Boost Innovation?, Nat'l Bureau of Econ. 
    Research, Sept. 2008, available at http://www.nber.org/papers/w14312.
        \38\ See Wadhwa, Vivek, et al., ``America's New Immigrant 
    Entrepreneurs,'' Report by the Duke School of Engineering and the UC 
    Berkeley School of Information (Jan. 4, 2007) available at http://
    people.ischool.berkeley.edu/~anno/Papers/
    Americas_new_immigrant_entrepreneurs_I.pdf; see also Wadhwa, Vivek, 
    et al., Intellectual Property, the Immigration Backlog, and a 
    Reverse Brain-Drain--America's New Immigrant Entrepreneurs, Part 
    III, Center for Globalization, Governance & Competitiveness (Aug. 
    2007), available at http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf; cf. Preston, Julia, ``Work Force Fueled by Highly Skilled 
    Immigrants,'' N.Y. Times, Apr. 15, 2010, available at http://www.nytimes.com/2010/04/16/us/16skilled.html?_r=1.
        \39\ See Fairlie, Robert,''Kauffman Index of Entrepreneurial 
    Activity: 1996-2012,'' The Ewing Marion Kauffman Foundation. Apr. 
    2013, available at http://www.kauffman.org/what-we-do/research/2013/04/kauffman-index-of-entrepreneurial-activity-19962012; Partnership 
    for a New American Economy, 2011, The ``New American'' Fortune 500, 
    available athttp://www.nyc.gov/html/om/pdf/2011/partnership_for_a_new_american_economy_fortune_500.pdf.
        \40\ See Enhancing American Competitiveness through Skilled 
    Immigration: Hearing before the H. Judiciary Subcomm. on 
    Immigration, 113th Cong. 15 (2013), available at http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg79724/pdf/CHRG-113hhrg79724.pdf.
    ---------------------------------------------------------------------------
    
        As noted above, this rule is intended to reduce the disincentives 
    to pursue lawful permanent residence due to the potentially long wait 
    for immigrant visas for many H-1B nonimmigrants and their families. 
    Also, this rule will encourage those H-1B nonimmigrants who have 
    already started the process for permanent residence not to abandon 
    their efforts because their H-4 dependent spouses are unable to work.
    3. Volume Estimate
        Due to current data limitations, DHS is unable to precisely track 
    the population of H-4 dependent spouses tied to H-1B nonimmigrants who 
    have an approved Immigrant Petition for Alien Worker (Form I-140) or 
    who have been granted H-1B status under the provisions of AC21. DHS 
    databases are currently ``form-centric'' rather than ``person-
    centric.'' As USCIS transforms its systems to a more fully electronic 
    process, there will be a shift from application- and form-based 
    databases to one database that tracks information by the applicant or 
    petitioner and which will improve DHS's ability to track the number of 
    potential H-4 employment authorization applicants.
        In the proposed rule, DHS estimated that as many as 100,600 H-4 
    dependent spouses would be eligible to apply for employment 
    authorization in the first year, and as many as 35,900 H-4 dependent 
    spouses would be eligible to apply annually in subsequent years. The 
    estimates provided in the proposed rule have been updated in this final 
    rule. In an effort to provide a reasonable approximation of the number 
    of H-4 dependent spouses who will be eligible for employment 
    authorization under this final rule, DHS has compared historical data 
    on persons obtaining LPR status against employment-based immigrant 
    demand estimates. Based on current visa availability, DHS believes that 
    dependent spouses of H-1B nonimmigrants who are seeking employment-
    based visas under the second or third preference categories will be the 
    group most impacted by the provisions of this rule, because certain 
    chargeability areas in these preference categories are currently 
    oversubscribed. In addition, in line with the goals of this rule and 
    AC21, and based on immigration statistics, we assume that the large 
    majority of H-4 dependent spouses who will be eligible for this 
    provision are residing in the United States and will seek to acquire 
    LPR status by applying to adjust status with USCIS rather than by 
    departing for an indeterminate period to pursue consular processing of 
    an immigrant visa application overseas. This assumption is supported by 
    immigration statistics on those obtaining LPR status. In FY 2013, there 
    were a total of 161,110 employment-based immigrant visa admissions, of 
    which 140,009 (or 86.9 percent) obtained LPR status through adjustment 
    of status in the United States.\41\ This analysis limits the focus and 
    presentation of impacts based only on the employment-based preference 
    immigrant population seeking to adjust status to that of a lawful 
    permanent resident, rather than the employment-based preference 
    immigrant population seeking to obtain an immigrant visa through 
    consular processing.
    ---------------------------------------------------------------------------
    
        \41\ See DHS Office of Immigration Statistics, 2013 Yearbook of 
    Immigration Statistics, Table 6, available at http://www.dhs.gov/yearbook-immigration-statistics-2013-lawful-permanent-residents 
    (compare statistics listed under ``total employment-based 
    preferences'' and ``adjustment of status employment-based 
    preferences'').
    ---------------------------------------------------------------------------
    
        DHS will extend eligibility to apply for employment authorization 
    to the H-4 dependent spouses of H-1B nonimmigrants who are principal 
    beneficiaries of approved Form I-140 petitions or who have been granted 
    H-1B status pursuant to sections 106(a) and (b) of AC21. Therefore, DHS 
    assumes that the volume of H-4 dependent spouses newly eligible for 
    employment authorization is comprised of two estimates: (1) an 
    immediate, first year estimate due to the current backlog of Form I-140 
    petitions; and (2) an annual estimate based on future demand to 
    immigrate under employment-based preference categories. Extending 
    eligibility for employment authorization to H-4 dependent spouses is 
    ultimately tied to the actions taken by the H-1B nonimmigrant; 
    therefore, the overall volume estimate is based on the population of H-
    1B nonimmigrants who have taken steps to acquire LPR status under 
    employment-based preference categories.
        DHS has estimated the number of persons waiting for LPR status in 
    the first through third employment-based preference categories as of 
    June 30, 2014. In this analysis, the estimated number of persons 
    waiting for an immigrant visa is referred to as the ``backlog'' and 
    includes those with an approved Form I-140 petition as of June 30, 2014 
    and those with a filed Form I-140 petition that is pending as of June 
    30 but is likely to be approved in the future.\42\ Currently, the first 
    preference employment-based (EB-1) visa category is not oversubscribed. 
    Therefore, DHS believes that the majority of H-4 dependent spouses 
    applying for employment authorization under this rule will be those 
    whose H-1B principals are seeking to adjust status under the second or 
    third preference category. However, as there are persons with pending 
    Form I-140 petitions in the first preference category that are approved 
    or likely to be approved based on historical approval rates, and 
    because the provisions of AC21 apply to these individuals, DHS has 
    included them in this analysis.\43\ Additionally, DHS has examined 
    detailed characteristics about the LPR population for FY 2009-FY 2013 
    to further refine this estimate.\44\ We have laid out each of our 
    assumptions and methodological steps for both the backlog and annual 
    estimates of H-4 dependent spouses who will be eligible to apply for 
    employment authorization. Again, the estimates are based on the actions 
    and characteristics of the H-1B nonimmigrant (e.g., whether the H-1B 
    nonimmigrant reports being married) because the H-4 dependent spouse's
    
    [[Page 10306]]
    
    eligibility to apply for employment authorization is tied to the steps 
    taken on behalf of the H-1B nonimmigrant to acquire LPR status under an 
    employment-based preference category.
    ---------------------------------------------------------------------------
    
        \42\ Source for backlog estimation: USCIS Office of Policy & 
    Strategy analysis of data obtained from the USCIS Office of 
    Performance and Quality. Analysis based on CLAIMS3 data captured in 
    approved Immigrant Petition for Alien Worker (Form I-140). Of the 
    Form I-140 petitions that were approved or pending as of June 30, 
    2014, USCIS allocated those that were pending that were ``likely to 
    be approved'' based on USCIS approval rates in order to more 
    accurately estimate the cases in the backlog.
        \43\ Despite the fact that a beneficiary is in a preference 
    category where a visa is immediately available, and the beneficiary 
    is able to apply to adjust status to an LPR immediately upon the 
    filing of the I-140 petition, DHS is including estimates of first-
    preference LPRs that have an approved Form I-140 or are waiting for 
    Form I-140 approval as of June 30, 2014 for which we are unable to 
    determine that an adjustment of status application has been 
    concurrently filed. As mentioned previously, principal beneficiaries 
    of Form I-140 petitions and their dependents who are eligible to 
    file for adjustment of status also are eligible for employment 
    authorization.
        \44\ Source: USCIS Office of Policy & Strategy analysis of data 
    obtained from DHS Office of Immigration Statistics. Analysis based 
    on CLAIMS3 data captured in Application to Register Permanent 
    Residence or Adjust Status (Form I-485) records approved in the FY 
    2009-13 period.
    ---------------------------------------------------------------------------
    
    a. Backlog Estimate
        The estimate of the number of individuals who are the principal 
    beneficiaries of either an approved Form I-140 petition or a Form I-140 
    petition that is likely to be approved and who are waiting for an 
    immigrant visa in the EB-1, EB-2, and EB-3 categories is shown in Table 
    3. Importantly, the number of principal workers shown in Table 3 is not 
    limited only to those individuals who are currently in H-1B status. The 
    estimates in Table 3 include aliens who are currently in H-1B and other 
    nonimmigrant statuses, as well as those seeking to immigrate under 
    employment-based preference categories who are currently abroad.
    
     Table 3--DHS Estimate of Backlog (Principals Only) as of June 30, 2014
    ------------------------------------------------------------------------
                                                                  Principal
                        Preference category                        workers
    ------------------------------------------------------------------------
    EB-1.......................................................        9,000
    EB-2.......................................................      146,500
    EB-3.......................................................       78,500
    ------------------------------------------------------------------------
    
        DHS is unable to precisely determine the number of H-1B 
    nonimmigrants in the backlog who will be impacted by this rule. 
    Instead, DHS examined detailed statistics of those obtaining LPR status 
    from FY 2009-2013, and used this information as a proxy to refine the 
    estimate of principal workers in the backlog that DHS expects to be 
    married H-1B nonimmigrants seeking to adjust status. That estimate 
    provides the basis for approximating the number of H-4 dependent 
    spouses who will be impacted by this rule.\45\ Table 4 presents the 
    assumptions and steps taken to determine the upper-bound estimate of H-
    4 dependent spouses who are represented in the backlog and will likely 
    now be eligible to apply for work authorization.
    ---------------------------------------------------------------------------
    
        \45\ Id.
    
     Table 4--Steps Taken To Arrive at the Upper-Bound Final Estimate of H-4 Dependent Spouses of H-1B Nonimmigrants
                                             Who Are in the ``Backlog'' \46\
    ----------------------------------------------------------------------------------------------------------------
                       Assumption and/or Step                         EB-1         EB-2         EB-3        Total
    ----------------------------------------------------------------------------------------------------------------
    (1) Principal workers in the backlog (as of June 30, 2014)..        9,000      146,500       78,500      234,000
    (2) Historical percentage of principal workers who obtained         96.1%        98.2%        89.3%  ...........
     LPR Status through adjustment of status, average over FY 09-
     FY13 data..................................................
    (3) Estimated proportion of the backlog that DHS assumes            8,649      143,863       70,128      222,640
     will adjust status (rounded)...............................
    (4) Historical percentage of those who adjusted status who          32.5%        89.3%        61.6%  ...........
     were H-1B nonimmigrants, average over FY 09-FY13 data......
    (5) DHS estimated proportion of the assumed H-1B                    2,811      128,470       43,199      174,480
     nonimmigrants who adjusted status (rounded)................
    (6) Historical percentage of H-1B principal workers who             81.1%        72.6%        67.2%  ...........
     adjusted status and who reported being married, average
     over FY 09-FY13 data.......................................
    (7) DHS estimated proportion of the assumed H-1B                    2,280       93,269       29,030      124,579
     nonimmigrants who adjusted status and who report being
     married (rounded)..........................................
    ----------------------------------------------------------------------------------------------------------------
    (8) Final Estimate of H-1B Nonimmigrants in the Backlog Potentially Impacted by the Final Rule           124,600
     (Rounded Up)
    ----------------------------------------------------------------------------------------------------------------
    
        As shown  in Table 4, DHS estimates there are approximately 124,600 
    H-1B nonimmigrants currently in the backlog for an immigrant visa under 
    the first through third employment-based preference categories who are 
    married. Accordingly, DHS assumes by proxy that there could be as many 
    as 124,600 H-4 dependent spouses of H-1B nonimmigrants currently in the 
    backlog who could be initially eligible to apply for employment 
    authorization under this rule. DHS does not have a similar way to parse 
    out the backlog data for those classified as ``dependents'' to capture 
    only those who are spouses rather than children. Furthermore, DHS 
    recognizes that the estimate of H-4 dependent spouses in the backlog 
    who will now be eligible to apply for employment authorization is a 
    maximum estimate since there is no way to further refine this estimate 
    by determining the immigration or citizenship status of the spouses of 
    H-1B nonimmigrants who report being married. For instance, the spouse 
    of the H-1B nonimmigrant could reside abroad, be a U.S. citizen or LPR, 
    or be in another nonimmigrant status that confers employment 
    eligibility. Additionally, H-4 dependent spouses who may be eligible 
    for employment authorization under this rule may decide not to work and 
    therefore not apply for an EAD. Accordingly, DHS believes that the 
    estimate of 124,600 represents an upper-bound estimate of H-4 dependent 
    spouses of H-1B nonimmigrants currently waiting for immigrant visas.
    ---------------------------------------------------------------------------
    
        \46\ Note: In the proposed rule, there was a data compilation 
    error in step 4 for EB-2 estimates of the H-1B population which 
    carried through the calculations. Instead of 19,159 reported in the 
    proposed rule as the estimated proportion of H-1B nonimmigrants that 
    adjusted their status to EB-2 and reported being married, that total 
    should have read approximately 60,000. The proposed rule's total 
    estimate of H-1B in the backlog as of September 2012 (step 8 of the 
    calculation) should have read approximately 106,000 based on FY 08--
    FY 11 data.
    ---------------------------------------------------------------------------
    
    b. Annual Demand Estimate
        The annual demand flow of H-4 dependent spouses who will be 
    eligible to apply for initial employment authorization under the final 
    rule is based on: (1) The number of Form I-140 petitions approved where 
    the principal beneficiary is currently in H-1B status; and (2) the 
    number of extensions of stay petitions approved for H-1B nonimmigrants 
    pursuant to AC21.\47\ Petitioners request extensions of stay or status 
    for an H-1B nonimmigrant using the Petition for a Nonimmigrant Worker 
    (Form I-129). Section 104(c) of AC21 allows for extensions of stay for 
    an H-1B nonimmigrant who has an
    
    [[Page 10307]]
    
    approved Form I-140 petition but is unable to apply to adjust to LPR 
    status because of visa unavailability. Sections 106(a) and (b) of AC21 
    allow for extensions of stay for an H-1B nonimmigrant on whose behalf a 
    labor certification application or a Form I-140 petition was filed at 
    least 365 days prior to reaching the end of the sixth year of his or 
    her H-1B status.
    ---------------------------------------------------------------------------
    
        \47\ There may be a very limited number of instances where an 
    individual could be abroad and obtain an H-1B nonimmigrant visa 
    pursuant to AC21; however, USCIS is unable to precisely determine 
    this limited population due to current system limitations. As such, 
    this analysis focuses only on those cases where an H-1B nonimmigrant 
    is currently in the United States and requesting an extension of 
    their H-1B status pursuant to AC21.
    ---------------------------------------------------------------------------
    
        In the preamble of the proposed rule, DHS used colloquial language 
    to describe the basis for H-1B nonimmigrants to be eligible for 
    extensions of their stay under section 106 of AC21. It is typical to 
    describe H-1B nonimmigrants who are eligible for AC21 extensions as 
    those H-1B nonimmigrants who are the beneficiaries of a labor 
    certification application or Form I-140 petition that has been pending 
    for at least 365 days prior to reaching the end of the sixth year of H-
    1B status. This colloquial description was used in the proposed rule; 
    however, this language does not accurately describe AC21 eligibility. 
    Per the statute, an H-1B nonimmigrant is eligible for an extension of 
    stay pursuant to AC21 provided that they are the beneficiary of a labor 
    certification application or a Form I-140 petition that has been filed 
    at least 365 days prior to the end of their sixth year of H-1B status. 
    From a practical standpoint, neither the labor certification nor the 
    Form I-140 petition needs to remain pending adjudication for 365 days 
    or more to qualify for an extension pursuant to AC21.
        It may be helpful to illustrate this description using a graphical 
    illustration of a case where an H-1B nonimmigrant would generally be 
    eligible for an extension of his or her maximum period of stay pursuant 
    to AC21, even though neither the labor certification application nor 
    the Form I-140 petition remain pending with DOL or DHS, respectively, 
    for a year or more.
    [GRAPHIC] [TIFF OMITTED] TR25FE15.017
    
    In this illustration, the H-1B nonimmigrant would be eligible for 
    extension of his or her stay pursuant to sections 106(a) and (b) of 
    AC21, even though his or her labor certification was certified in 6 
    months and the Form I-140 petition had only been pending for two months 
    at the time of AC21 extension.
        In this final rule's preamble, DHS is correcting the description of 
    how H-1B nonimmigrants become eligible for extensions of stay pursuant 
    to sections 106(a) and (b) of AC21. Importantly, this language change 
    does not impact who ultimately qualifies to apply for employment 
    authorization under this final rule. The informal language used in the 
    preamble of the proposed rule also does not impact the USCIS 
    adjudication of petitions to authorize H-1B status pursuant to AC21. 
    Accurately describing the statutory conditions of AC21 does, however, 
    necessitate that DHS amend its estimate of the annual flow projections 
    of H-4 dependent spouses who may be eligible to apply for employment 
    authorization. In the proposed rule, DHS estimated the number of H-4 
    dependent spouses who would be eligible to apply for work authorization 
    pursuant to AC21 by examining historical data of labor certifications 
    or Form I-140 petitions pending for a year or more with the DOL and 
    DHS, respectively. In contrast, this final rule examines the historical 
    data of extensions of stay petitions approved for nonimmigrants 
    currently in H-1B status to estimate the volume of H-4 dependent 
    spouses eligible to apply for work authorization pursuant to AC21.
        To recap, this rule will permit certain H-4 dependent spouses of H-
    1B nonimmigrants to be eligible to apply for employment authorization 
    provided that the H-1B nonimmigrants are: (1) The principal 
    beneficiaries of an approved Form I-140 petition, or (2) granted H-1B 
    status pursuant to sections 106(a) and (b) of AC21. The annual flow 
    estimate will therefore be based on historical data of these two 
    categories. USCIS began tracking those cases that were approved for an 
    extension pursuant to AC21 on October 17, 2014; in the past, USCIS 
    databases have not captured and stored this information.\48\ An 
    extension of stay request may be submitted on behalf of H-1B 
    nonimmigrants at any point throughout their authorized maximum six-year 
    period of stay, or to extend stay beyond the maximum six years pursuant 
    to AC21. Typically, an extension of stay request seeking eligibility 
    pursuant to AC21 would be at least the second extension request filed 
    on behalf of that H-1B nonimmigrant. The historical data of H-1B 
    nonimmigrants who have been approved for extensions of stay include all 
    requests, only some of which relate to extensions pursuant to AC21.
    ---------------------------------------------------------------------------
    
        \48\ On October 17, 2014, USCIS began capturing this information 
    during the adjudication of Form I-129 petitions. Importantly, the 
    tracking of cases that were approved for extension pursuant to AC21 
    do not distinguish between cases approved under section 104 and 
    cases approved under section 106. There is thus a potential for 
    overlap between the estimate of cases approved under AC21 and the 
    estimate of persons with approved Form I-140 petitions.
    ---------------------------------------------------------------------------
    
        The number of approved Form I-140 petitions and approved Form I-129 
    extension of stay petitions where the beneficiary currently has H-1B 
    status is presented in Table 5.
    
      Table 5--Form I-140 and Form I-129 (Extension of Status or Stay (EOS)
     Only) Approvals for Beneficiaries Currently in H-1B Nonimmigrant Status
    ------------------------------------------------------------------------
                                                                  Form I-129
                                                                  Extensions
                      Fiscal year                    Form I-140   of status/
                                                     approvals       stay
                                                                  approvals
    ------------------------------------------------------------------------
    2010..........................................       48,511      116,363
    2011..........................................       54,363      163,208
    2012..........................................       45,732      125,679
    2013..........................................       43,873      158,482
    2014..........................................       42,465      191,531
    5-Year Average................................       46,989      151,053
    ------------------------------------------------------------------------
    
    Based on approximately 90 days of tracking data (which is all that is
    
    [[Page 10308]]
    
    currently available), DHS estimates that 18.3 percent of approved 
    extension of stay requests filed on behalf of H-1B nonimmigrants are 
    approved pursuant to AC21. Assuming this proportion holds constant, DHS 
    estimates that annually it will approve approximately 27,643 \49\ 
    extension of stay requests pursuant to AC21. Importantly, because the 
    tracking of extensions pursuant to AC21 does not distinguish between 
    those cases adjudicated under section 104(c) of AC21 and those cases 
    adjudicated under section 106 of AC21, there is likely some overlap in 
    the baseline estimate of 27,643 and the estimate of persons who have 
    approved I-140 petitions. Because DHS is unable to parse out the 
    individuals who have extended their status pursuant to section 104(c) 
    of AC21, and because such persons have approved I-140 petitions, DHS 
    may be overestimating the annual number of H-4 dependent spouses who 
    will be eligible to apply for initial employment authorization. 
    However, while there is uncertainty that may result in overstating the 
    annual estimates, DHS relied on the best available information to 
    arrive at this estimate. Thus, for purposes of this analysis, DHS will 
    use 74,632 \50\ as the baseline projection of H-1B nonimmigrants who 
    have started the immigration process.
    ---------------------------------------------------------------------------
    
        \49\ Calculation: 151,053 (5-year average of I-129 extension of 
    stay approvals) x 18.3 percent = 27,643 extensions approved pursuant 
    to AC21.
        \50\ Calculation: 46,989 (5-year average of Form I-140 
    approvals) + 27,643 (annual estimate of approved extensions of stay 
    pursuant to AC21) = 74,632 baseline estimate.
    ---------------------------------------------------------------------------
    
        To refine the annual flow projection estimates, DHS has chosen to 
    estimate the proportion of applications filed in the first through 
    third employment-based preference categories. Additionally, since DHS 
    has already limited the historical counts in Table 5 to those approved 
    petitions where the beneficiary's current nonimmigrant classification 
    is H-1B, DHS has made the assumption that the petitions shown in Table 
    5 represent H-1B nonimmigrants who are physically present in the United 
    States and intend to adjust status. As shown in Table 4, the historical 
    proportion of H-1B nonimmigrants obtaining LPR status under EB-1, EB-2, 
    and EB-3 categories who reported being married was 81.1 percent, 72.6 
    percent, and 67.2 percent, respectively, resulting in an average of 
    73.6 percent. Applying this percentage to the baseline projection 
    results in an annual flow estimate of 55,000 (rounded).\51\ Again, due 
    to the fact that DHS is unable to estimate the proportion of H-1B 
    nonimmigrants granted extensions of status pursuant only to section 106 
    of AC21, and because DHS is unable to determine the immigration or 
    citizenship status of spouses of H-1B nonimmigrants who report being 
    married, this is an upper-bound estimate of H-4 dependent spouses who 
    could be eligible to apply for employment authorization under the rule.
    ---------------------------------------------------------------------------
    
        \51\ Calculation: 74,632 x 73.6 percent = 54,929 or 55,000 
    rounded up to the nearest hundred.
    ---------------------------------------------------------------------------
    
        Therefore, DHS estimates that this rule will result in a maximum 
    initial estimate of 179,600 \52\ H-4 dependent spouses who could be 
    newly eligible to apply for employment authorization in the first year 
    of implementation, and an annual flow of as many as 55,000 who are 
    newly eligible in subsequent years.
    ---------------------------------------------------------------------------
    
        \52\ Calculation: Backlog of 124,600 plus annual demand estimate 
    for married H-1Bs of 55,000 = 179,600.
    ---------------------------------------------------------------------------
    
    4. Costs
    i. Filer Costs
        The final rule will permit certain H-4 dependent spouses to apply 
    for employment authorization in order to work in the United States. 
    Therefore, only H-4 dependent spouses who decide to seek employment 
    while residing in the United States will face the costs associated with 
    obtaining employment authorization. The costs of the rule will stem 
    from filing fees and the opportunity costs of time associated with 
    filing Form I-765.
        The current filing fee for Form I-765 is $380. The fee is set at a 
    level to recover the processing costs to DHS. Applicants for employment 
    authorization are required to submit two passport-style photos along 
    with the application, which is estimated to cost $20.00 per application 
    based on Department of State estimates.\53\ DHS estimates the time 
    burden of completing this application to be 3 hours and 25 minutes. DHS 
    recognizes that H-4 dependent spouses do not currently participate in 
    the U.S. labor market, and, as a result, are not represented in 
    national average wage calculations. However, to provide a reasonable 
    proxy of time valuation, DHS chose to use the minimum wage to estimate 
    the opportunity cost consistent with methodology employed in other DHS 
    rulemakings when estimating time burden costs for those who are not 
    work authorized.
    ---------------------------------------------------------------------------
    
        \53\ DOS estimates an average cost of $10 per passport photo in 
    the Paperwork Reduction Act (PRA) Supporting Statement found under 
    OMB control number 1450-0004. A copy of the Supporting Statement is 
    found on Reginfo.gov at http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001 (see question #13 of the 
    Supporting Statement) (accessed Oct. 21, 2014).
    ---------------------------------------------------------------------------
    
        The Federal minimum wage is currently $7.25 per hour.\54\ In order 
    to anticipate the full opportunity cost to petitioners, we multiplied 
    the average hourly U.S. wage rate by 1.46 to account for the full cost 
    of employee benefits such as paid leave, insurance, and retirement for 
    a total of $10.59 per hour.\55\ Based on this wage rate, H-4 dependent 
    spouses who decide to file Form I-765 applications will face an 
    estimated opportunity cost of time of $36.18 per applicant.\56\ 
    Combining the opportunity costs with the fee and estimated passport-
    style photo costs, the total cost per application will be $436.18.\57\ 
    In the first year of implementation, DHS estimates the total maximum 
    cost to the total of H-4 dependent spouses who could be eligible to 
    file for an initial employment authorization will be as much as 
    $78,337,928 (non-discounted), and $23,989,900 annually in subsequent 
    years. The 10-year discounted cost of this rule to filers of initial 
    employment authorizations is $257,403,789 at 3 percent, while the 10-
    year discounted cost to filers is $219,287,568 at 7 percent. 
    Importantly, in future years the applicant pool of H-4 dependent 
    spouses filing for employment authorization will include both those 
    initially eligible and those who will seek to renew their EADs as they 
    continue to wait for visas to become available. DHS could not project 
    the number of renewals as the volume of H-4 dependent spouses who will 
    need to renew is dependent upon visa availability, which differs based 
    on the preference category and the country of nationality. H-4 
    dependent spouses needing to renew their employment authorization will 
    still face a per-application cost of $436.18.
    ---------------------------------------------------------------------------
    
        \54\ U.S. Dep't of Labor, Wage and Hour Division. The minimum 
    wage in effect as of July 24, 2009, available at http://www.dol.gov/dol/topic/wages/minimumwage.htm.
        \55\ The calculation to burden the wage rate: $7.25 x 1.46 = 
    $10.59 per hour. See Economic News Release, U.S. Dep't of Labor, 
    Bureau of Labor Statistics, Table 1. Employer costs per hour worked 
    for employee compensation and costs as a percent of total 
    compensation: Civilian workers, by major occupational and industry 
    group (June 2014), available at http://www.bls.gov/news.release/archives/ecec_09102014.htm (viewed Oct. 23, 2014).
        \56\ Calculation for opportunity cost of time: $10.59 per hour x 
    3.4167 hours (net form completion time) = $36.18.
        \57\ Calculation for total application cost: $380 (filing fee) + 
    $20 (cost estimate for passport photos) + $36.18 (opportunity cost 
    of time) = $436.18.
    
    ---------------------------------------------------------------------------
    
    [[Page 10309]]
    
    ii. Government Costs
        The INA provides for the collection of fees at a level that will 
    ensure recovery of the full costs of providing adjudication and 
    naturalization services, including administrative costs and services 
    provided without charge to certain applicants and petitioners. See INA 
    section 286(m), 8 U.S.C. 1356(m). DHS has established the fee for the 
    adjudication of Form I-765 in accordance with this requirement. As 
    such, there are no additional costs to the Federal Government resulting 
    from this rule.
    iii. Impact on States
        Currently, once visas are determined to be immediately available, 
    H-1B nonimmigrants and their dependent family members may be eligible 
    to apply for adjustment of status to that of a lawful permanent 
    resident. Upon filing an adjustment of status application, the H-4 
    dependent spouse is eligible to request employment authorization. This 
    rule will significantly accelerate the timeframe by which qualified H-4 
    dependent spouses are eligible to enter the U.S. labor market. As a 
    result of the changes made in this rule, certain H-4 dependent spouses 
    will be eligible to request employment authorization well before they 
    are eligible to apply for adjustment of status. Even with the change in 
    the maximum number of H-4 dependent spouses who may be impacted as 
    reported in the proposed rule and this final rule, DHS maintains that 
    the expected outcomes are the same. DHS believes that this regulatory 
    change will encourage families to stay committed to the immigrant visa 
    process during the often lengthy wait for employment-based visas 
    whereas, otherwise, they may leave the United States and abandon 
    immigrant visa processing altogether. As such, DHS presents the 
    geographic labor impact of this rule even though this rule does not 
    result in ``new'' additions to the labor market; it simply accelerates 
    the timeframe by which they can enter the labor market. As mentioned 
    previously, DHS estimates this rule can add as many as 179,600 
    additional persons to the U.S. labor force in the first year of 
    implementation, and then as many as 55,000 additional persons annually 
    in subsequent years. As of 2013, there were an estimated 155,389,000 
    people in the U.S. civilian labor force.\58\ Consequently, 179,600 
    additional available workers in the first year (the year with the 
    largest number of eligible applicants) represent a little more than 
    one-tenth of a percent, 0.1156 percent, of the overall U.S. civilian 
    labor force (179,600/155,389,000 x 100 = 0.1156 percent).\59\
    ---------------------------------------------------------------------------
    
        \58\ See News Release, United States Dep't of Labor, Bureau of 
    Labor Statistics, Local Area Unemployment Statistics, Regional and 
    State Unemployment--2013 Annual Averages, Table 1 ``Employment 
    status of the civilian noninstitutional population 16 years of age 
    and over by region, division, and state, 2012-13 annual averages'' 
    (Feb. 28, 2014), available at http://www.bls.gov/news.release/archives/srgune_02282014.pdf.
        \59\ Note that even with the changed estimate from the proposed 
    rule, the finding remains consistent; the overall impact to the U.S. 
    labor force is a fraction of one percent.
    ---------------------------------------------------------------------------
    
        The top five States where persons granted LPR status have chosen to 
    reside are: California (20 percent), New York (14 percent), Florida (10 
    percent), Texas (9 percent), and New Jersey (5 percent).\60\ While 
    allowing certain H-4 dependent spouses the opportunity to work will 
    result in a negligible increase to the overall domestic labor force, 
    the states of California, New York, Florida, Texas, and New Jersey may 
    have a slightly larger share of additional workers compared with the 
    rest of the United States. Based on weighted average proportions 
    calculated from FY 2009-2013, and assuming the estimate for first year 
    impacts of 179,600 additional workers were distributed following the 
    same patterns, DHS anticipates the following results: California could 
    receive approximately 35,920 additional workers in the first year of 
    implementation; New York could receive approximately 25,144 additional 
    workers; Florida could receive approximately 17,960 additional workers; 
    Texas could receive approximately 16,164 additional workers; and New 
    Jersey could receive approximately 8,980 additional workers. To provide 
    context, California had 18,597,000 persons in the civilian labor force 
    in 2013.\61\ The additional 35,920 workers who could be added to the 
    Californian labor force as a result of this rule in the first year 
    would represent less than two-tenths of a percent of that state's labor 
    force (35,920/18,597,000 x 100 = 0.1931 percent). As California is the 
    state estimated to receive the highest number of additional workers, 
    the impact on the states civilian labor force is minimal.
    ---------------------------------------------------------------------------
    
        \60\ DHS Office of Immigration Statistics, Annual Flow Reports, 
    ``U.S. Legal Permanent Residents'' for 2009-2012 and ``U.S. Lawful 
    Permanent Residents: 2013,'' available at http://www.dhs.gov/immigration-statistics-publications#0. Author calculated percentage 
    distributions by State weighted over FY 2009-2013 (rounded).
        \61\ See News Release, U.S. Dep't of Labor, Bureau of Labor 
    Statistics, Local Area Unemployment Statistics, Regional and State 
    Unemployment--2013 Annual Averages, Table 1, Employment status of 
    the civilian noninstitutional population 16 years of age and over by 
    region, division, and state, 2012-13 annual averages (Feb. 28, 
    2014), available at http://www.bls.gov/news.release/archives/srgune_02282014.pdf.
    ---------------------------------------------------------------------------
    
    5. Benefits
        As previously mentioned, once this rule is finalized, these 
    amendments will increase incentives of certain H-1B nonimmigrants who 
    have begun the process of becoming LPRs to remain in the United States 
    and contribute to the U.S. economy as they complete this process. 
    Providing the opportunity for certain H-4 dependent spouses to obtain 
    employment authorization during this process will further incentivize 
    H-1B nonimmigrants to not abandon their intention to remain in the 
    United States while pursuing LPR status. Retaining highly skilled 
    persons who intend to become LPRs is important when considering the 
    contributions of these individuals to the U.S. economy, including 
    advances in research and development and other entrepreneurial 
    endeavors. As previously discussed, much research has been done to show 
    the positive impacts on economic growth and job creation from highly 
    skilled immigrants. In addition, these regulatory amendments will bring 
    U.S. immigration policies more in line with the policies of other 
    countries that seek to attract skilled foreign workers. For instance, 
    in Canada spouses of temporary workers may obtain an ``open'' work 
    permit allowing them to accept employment if the temporary worker meets 
    certain criteria.\62\ As another example, in Australia, certain 
    temporary work visas allow spousal employment.\63\
    ---------------------------------------------------------------------------
    
        \62\ See Canadian Government, Citizenship and Immigration 
    Canada, Help Centre under Topic ``Work Permit--Can my spouse or 
    common-law partner work in Canada?'', available at http://www.cic.gc.ca/english/helpcentre/index-featured-can.asp#tab1 (last 
    visited Jan. 13, 2015).
        \63\ See Australian Government, Dep't of Immigration and 
    Citizenship, Temporary Work (Skilled) visa (subclass 457), available 
    at http://www.immi.gov.au/Visas/Pages/457.aspx (last visited Jan. 
    13, 2015).
    ---------------------------------------------------------------------------
    
        This final rule will result in direct, tangible benefits for the 
    spouses who will be eligible to enter the labor market earlier than 
    they would have otherwise been able to do so due to the lack of 
    immigrant visas. While there will be obvious financial benefits to the 
    H-4 dependent spouse and the H-1B nonimmigrant's family, there is also 
    evidence that participating in the U.S. workforce and improving socio-
    economic attainment has a high correlation with smoothing an
    
    [[Page 10310]]
    
    immigrant's integration into American society.\64\
    ---------------------------------------------------------------------------
    
        \64\ See Jimen[eacute]z, Tom[aacute]s, Immigrants in the United 
    States: How Well Are They Integrating into Society? (2011) 
    Washington, DC: Migration Policy Institute, available at http://www.migrationpolicy.org/research/immigrants-united-states-how-well-are-they-integrating-society; see also Terrazas, Aaron, The Economic 
    Integration of Immigrants in the United States: Long- and Short-Term 
    Perspectives (2011) Washington, DC: Migration Policy Institute, 
    available at http://www.migrationpolicy.org/research/economic-integration-immigrants-united-states.
    ---------------------------------------------------------------------------
    
        Prior to this rule being effective, H-4 dependent spouses were not 
    able to apply for employment authorization until they were eligible to 
    submit their applications for adjustment of status or otherwise acquire 
    a nonimmigrant status authorizing employment. The amendments to the 
    regulations made by this final rule accelerate the timeframe by which 
    H-4 dependent spouses of H-1B nonimmigrants who are on the path to 
    being LPRs are able to enter into the U.S. labor market.
    6. Alternatives Considered
        One alternative considered by DHS was to permit employment 
    authorization for all H-4 dependent spouses. As explained in both the 
    proposed rule and in response to public comments, DHS declines to 
    extend the changes made by this rule to H-4 dependent spouses of all H-
    1B nonimmigrants at this time. Such an alternative would offer 
    eligibility for employment authorization to those spouses of 
    nonimmigrant workers who have not taken steps to demonstrate a desire 
    to continue to remain in and contribute to the U.S. economy by seeking 
    lawful permanent residence. In enacting AC21, Congress was especially 
    concerned with avoiding the disruption to U.S. businesses caused by the 
    required departure of H-1B nonimmigrants (for whom the businesses 
    intended to file employment-based immigrant visa petitions) upon the 
    expiration of the workers' maximum six-year period of authorized stay. 
    See S. Rep. No. 106-260, at 22 (2000). This rule further alleviates 
    these concerns.
        Another alternative considered was to limit employment eligibility 
    to just those H-4 dependent spouses of H-1B nonimmigrants who extended 
    their status under the provisions of AC21. As discussed in Section 3.b 
    of this Executive Order 12866/13563 assessment, DHS databases began 
    tracking the number of extensions of H-1B status that were approved 
    pursuant to AC21 on October 17, 2014. Historically DHS did not capture 
    this information. Based on approximately 90 days of case history, DHS 
    believes that approximately 18.3 percent of all extension of stay 
    applications filed on behalf of H-1B nonimmigrants are approved 
    pursuant to AC21. DHS estimates that there could be as many as 27,643 
    \65\ H-1B nonimmigrants with extensions of stay requests that were 
    approved pursuant to AC21. Further, DHS estimates that there could be 
    as many as 20,400 \66\ married H-1B nonimmigrants who are granted an 
    extension of stay pursuant to AC21. This alternative would also result 
    in some fraction of the backlog population being eligible for 
    employment authorization in the first year after implementation, but 
    DHS is unsure of what portion of the backlog population has been 
    granted an extension under AC21. However, DHS believes that this 
    alternative is too limiting and fails to recognize that other H-1B 
    nonimmigrants and their H-4 dependent spouses also experience long 
    waiting periods while on the path to lawful permanent residence. One of 
    the primary goals of this rulemaking is to provide an incentive to H-1B 
    nonimmigrant families to continue on the path to obtaining LPR status 
    in order to minimize the potential for disruptions to U.S. businesses 
    caused by the departure from the United States of these workers. The 
    Department believes that also extending employment authorization to the 
    spouses of H-1B nonimmigrants who are the beneficiaries of approved 
    Form I-140 petitions more effectively accomplishes the goals of this 
    rulemaking, because doing so incentivizes these workers, who have 
    established certain eligibility requirements and demonstrated intent to 
    reside permanently in the United States and contribute to the U.S. 
    economy, to continue their pursuit of LPR status. Thus, extending 
    employment authorization to H-4 dependent spouses of H-1B nonimmigrants 
    with either approved Form I-140 petitions or who have been granted H-1B 
    status pursuant to sections 106(a) and (b) of AC21 encourages a greater 
    number of professionals with high-demand skills to remain in the United 
    States.
    ---------------------------------------------------------------------------
    
        \65\ Calculation: 151,053 (5-year average of I-129 extension of 
    stay approvals) x 18.3 percent = 27,643 extensions approved pursuant 
    to AC21.
        \66\ Calculation: 27,643 (extensions approved pursuant to AC21) 
    x 73.6 percent (average percentage of H-1B nonimmigrants who adjust 
    to LPR status that report being married) = 20,345 or 20,400 (rounded 
    up).
    ---------------------------------------------------------------------------
    
    D. Regulatory Flexibility Act
    
        USCIS examined the impact of this rule on small entities under the 
    Regulatory Flexibility Act (RFA), 5 U.S.C. 601(6). A small entity may 
    be a small business (defined as any independently owned and operated 
    business not dominant in its field that qualifies as a small business 
    under the Small Business Act, 15 U.S.C. 632), a small not-for-profit 
    organization, or a small governmental jurisdiction (locality with fewer 
    than fifty thousand people). After considering the impact of this rule 
    on such small entities, DHS has determined that this rule will not have 
    a significant economic impact on a substantial number of small 
    entities. The individual H-4 dependent spouses to whom this rule 
    applies are not small entities as that term is defined in 5 U.S.C. 
    601(6). Accordingly, DHS certifies that this rule will not have a 
    significant economic impact on a substantial number of small entities.
    
    E. Executive Order 13132
    
        This rule will not have substantial direct effects on the States, 
    on the relationship between the National Government and the States, or 
    on the distribution of power and responsibilities among the various 
    levels of government. Therefore, in accordance with section 6 of 
    Executive Order 13132, it is determined that this rule does not have 
    sufficient federalism implications to warrant the preparation of a 
    federalism summary impact statement.
    
     F. Executive Order 12988
    
        This rule meets the applicable standards set forth in sections 3(a) 
    and 3(b)(2) of Executive Order 12988.
    
    G. Paperwork Reduction Act
    
        Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
    Departments are required to submit to the Office of Management and 
    Budget (OMB), for review and approval, any reporting requirements 
    inherent in a rule. See Public Law 104-13, 109 Stat. 163 (May 22, 
    1995). This final rule requires that eligible H-4 dependent spouses 
    requesting employment authorization complete an Application for 
    Employment Authorization (Form I-765), covered under OMB Control number 
    1615-0040. As a result of this final rule, this information collection 
    will be revised. DHS has received approval of the revised information 
    collection from OMB.
        DHS submitted the proposed revisions to Form I-765 to OMB for 
    review. DHS has considered the public comments received in response to 
    the publication of the proposed rule. Over 180 commenters raised issues 
    related to employment authorization requests, including filing 
    procedures, premium
    
    [[Page 10311]]
    
    processing, validity periods, renewals, evidentiary documentation, 
    concurrent filings for extension of stay/change of status, automatic 
    extensions of employment authorization, filing fees, and marriage 
    fraud. One commenter asked for clarification regarding whether H-4 
    dependent spouses under this rule are required to demonstrate economic 
    need for employment authorization using the Form I-765 Worksheet (I-
    765WS).
        DHS's responses to these comments appear under Part III.E. and F. 
    USCIS has submitted the supporting statement to OMB as part of its 
    request for approval of this revised information collection instrument.
        DHS has revised the originally proposed Form I-765 and form 
    instructions to clarify the supporting documentation that applicants 
    requesting employment authorization pursuant to this rule must submit 
    with the form to establish eligibility, and to state that USCIS will 
    accept Forms I-765 filed by such applicants concurrently with Forms I-
    539. DHS has also revised the Form I-765 to include a check box for the 
    applicant to identify him or herself as an H-4 dependent spouse. The 
    inclusion of this box will aid USCIS in its efforts to more efficiently 
    process the form for adjudication by facilitating USCIS's ability to 
    match the application with related petitions integral to the 
    adjudication of Form I-765. DHS does not anticipate any of these 
    changes will result in changes to the previously reported time burden 
    estimate. The revised materials can be viewed at www.regulations.gov.
        Lastly, DHS has updated the supporting statement to reflect a 
    change in the estimate for the number of respondents that USCIS 
    projected would submit this type of request from 1,891,823 respondents 
    to 1,981,516 respondents. This change of the initially projected number 
    of respondents is due to better estimates regarding the general 
    population of I-765 filers, in addition to this final rule's revised 
    estimate on the new number of applicants that will request EADs, which 
    results in a change of the estimated population of aliens that DHS 
    expects could file Form I-765. Specifically, in the proposed rule USCIS 
    estimated that approximately 58,000 new respondents would file requests 
    for EADs as a result of the changes prompted by this rule. USCIS has 
    revised that estimate and projects in this final rule that 
    approximately 117,300 new respondents will be able to file a Form I-
    765. With this change on the number of Form I-765 application filers, 
    the estimate for the total number of respondents has been updated. The 
    current hour inventory approved for this form is 7,140,900 hours, and 
    the requested new total hour burden is 8,159,070 hours, which is an 
    increase of 1,018,170 annual burden hours.
    
    V. Regulatory Amendments
    
        DHS adopted most of the proposed regulatory amendments without 
    change, except for conforming amendments to 8 CFR 214.2(h)(9)(iv) and 8 
    CFR 274a.13(d) and minor punctuation and wording changes in 8 CFR 
    214.2(h)(9)(iv) to improve clarity and readability.
    
    List of Subjects
    
    8 CFR Part 214
    
        Administrative practice and procedure, Aliens, Employment, Foreign 
    officials, Health professions, Reporting and recordkeeping 
    requirements, Students.
    
    8 CFR Part 274a
    
        Administrative practice and procedure, Aliens, Employment, 
    Penalties, Reporting and recordkeeping requirements.
    
        Accordingly, DHS amends chapter I of title 8 of the Code of Federal 
    Regulations as follows:
    
    PART 214--NONIMMIGRANT CLASSES
    
    0
    1. The authority citation for part 214 continues to read as follows:
    
        Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
    1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 
    110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section 
    141 of the Compacts of Free Association with the Federated States of 
    Micronesia and the Republic of the Marshall Islands, and with the 
    Government of Palau, 48 U.S.C. 1901 note and 1931 note, 
    respectively; 48 U.S.C. 1806; 8 CFR part 2.
    
    
    0
    2. Section 214.2 is amended by revising paragraph (h)(9)(iv) to read as 
    follows:
    
    
    Sec.  214.2  Special requirements for admission, extension, and 
    maintenance of status.
    
    * * * * *
        (h) * * *
        (9) * * *
        (iv) H-4 dependents. The spouse and children of an H nonimmigrant, 
    if they are accompanying or following to join such H nonimmigrant in 
    the United States, may be admitted, if otherwise admissible, as H-4 
    nonimmigrants for the same period of admission or extension as the 
    principal spouse or parent. H-4 nonimmigrant status does not confer 
    eligibility for employment authorization incident to status. An H-4 
    nonimmigrant spouse of an H-1B nonimmigrant may be eligible for 
    employment authorization only if the H-1B nonimmigrant is the 
    beneficiary of an approved Immigrant Petition for Alien Worker, or 
    successor form, or the H-1B nonimmigrant's period of stay in H-1B 
    status is authorized in the United States under sections 106(a) and (b) 
    of the American Competitiveness in the Twenty-first Century Act of 2000 
    (AC21), Public Law 106-313, as amended by the 21st Century Department 
    of Justice Appropriations Authorization Act, Public Law 107-273 (2002). 
    To request employment authorization, an eligible H-4 nonimmigrant 
    spouse must file an Application for Employment Authorization, or a 
    successor form, in accordance with 8 CFR 274a.13 and the form 
    instructions. If such Application for Employment Authorization is filed 
    concurrently with another related benefit request(s), in accordance 
    with and as permitted by form instructions, the 90-day period described 
    in 8 CFR 274.13(d) will commence on the latest date that a concurrently 
    filed related benefit request is approved. An Application for 
    Employment Authorization must be accompanied by documentary evidence 
    establishing eligibility, including evidence of the spousal 
    relationship and that the principal H-1B is the beneficiary of an 
    approved Immigrant Petition for Alien Worker or has been provided H-1B 
    status under sections 106(a) and (b) of AC21, as amended by the 21st 
    Century Department of Justice Appropriations Authorization Act, the H-
    1B beneficiary is currently in H-1B status, and the H-4 nonimmigrant 
    spouse is currently in H-4 status.
    * * * * *
    
    PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
    
    0
    3. The authority citation for part 274a continues to read as follows:
    
        Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Public Law 
    110-229; 48 U.S.C. 1806; 8 CFR part 2.
    
    
    0
    4. Section 274a.12 is amended by adding a new paragraph (c)(26), to 
    read as follows:
    
    
    Sec.  274a.12  Classes of aliens authorized to accept employment.
    
    * * * * *
        (c) * * *
        (26) An H-4 nonimmigrant spouse of an H-1B nonimmigrant described 
    as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv).
    * * * * *
    
    [[Page 10312]]
    
    
    0
    5. Section 274a.13 is amended by revising the first sentence of 
    paragraph (d), to read as follows:
    
    
    Sec.  274a.13  Application for employment authorization.
    
    * * * * *
        (d) Interim employment authorization. USCIS will adjudicate the 
    application within 90 days from the date of receipt of the application, 
    except as described in 8 CFR 214.2(h)(9)(iv), and except in the case of 
    an initial application for employment authorization under 8 CFR 
    274a.12(c)(8), which is governed by paragraph (a)(2) of this section, 
    and 8 CFR 274a.12(c)(9) in so far as it is governed by 8 CFR 245.13(j) 
    and 245.15(n). * * *
    * * * * *
    
    Jeh Charles Johnson,
    Secretary.
    [FR Doc. 2015-04042 Filed 2-24-15; 8:45 am]
    BILLING CODE 9111-97-P
    
    
    
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