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Immigration Law

Work Authorization for Some H-4 Spouses Liberates Them from the Tyranny of Priority Dates: Gary Endelman & Cyrus D. Mehta

"The proposed rule provides that an H-4 spouse may apply for employment authorization if  the principal H-1B spouse is the beneficiary of an approved I-140 immigrant petition; or, if the H-1B spouse  been granted an extension of beyond the 6-year limitation pursuant to section 106(a) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).  Under section 106(a) of AC 21, the filing of a labor certification or employment-based immigrant visa petitions 365 days prior to the sixth year allows the H-1B worker to apply for an additional year beyond the sixth year.

In Tyranny of Priority Dates and subsequent articles, we pointed out the long delays befalling skilled immigrants due to the backlogs in the priority dates, and proposed remedial measures, including the ability of an H-4 spouse to work.  Our prior analysis of H-4 spousal employment and earlier indications that the USCIS recognized the problem and intended to do something about it provide a helpful context against which the importance of this latest development can be measured.
What we in the United States are dealing with is a global battle for talent.  More than any other single immigration issue, the H-1B visa debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based.  They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create.  We are no longer the only game in town.  The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await.  No decision on H quotas can or should be made separate and apart from an answer to a far more fundamental question: How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests?  This is the very heart of the H-1B maze." - Gary Endelman & Cyrus D. Mehta, May 12, 2014.