[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





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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]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

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


Employment Authorization for Certain H-4 Dependent Spouses

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.

ACTION: Final rule.

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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).
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\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.
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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]
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Sum of years 2-10 Total over 10-year
Year 1 estimate (55,000 filers period of analysis
(179,600 filers) annually) *
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3% Discount Rate:
Total Costs Incurred by Filers @3%.............. $76.1 $181.3 $257.4
7% Discount Rate:
Total Costs Incurred by Filers @7%.............. 73.2 146.1 219.3
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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.
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* 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).
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\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.
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For H-1B nonimmigrants seeking to adjust their status to or
otherwise acquire LPR status through employment-based (EB) immigration,
an employer generally must first file a petition on their behalf. See
INA section 204(a), 8 U.S.C. 1154(a). An H-1B nonimmigrant may seek LPR
status under one of the following five EB preference categories:

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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.
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\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.
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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
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\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'').
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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.
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\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.
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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).
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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\
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\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.
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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.
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\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\
---------------------------------------------------------------------------

\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