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Spouses of H-1B Workers Can Now Seek Employment

Written By The Shapiro Law Group on March 02, 2015

The Department of Homeland Security (DHS) recently announced that, beginning May 26, 2015, certain H-4 visa holders will be eligible for employment authorization. Currently, H-4 visa holders – dependent spouses and children of H-1B visa holders – are not authorized to work in the United States. The new rule is a welcome change for many foreign nationals working in this country under an H-1B visa by allowing for an additional source of income for their family.

The new rule applies only to the spouses of H-1B visa holders who have already been approved for an I-140 immigrant petition for permanent residency (i.e. green card) or who have been granted an extension to stay beyond the H-1B visa’s usual six-year limit under sections 106 (a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000. Children of H1-B workers, however, still cannot legally work during college and age out of the system at 21, which may happen before the family receives permanent residency.

The United States Citizenship and Immigration Service (USCIS) estimates that as many as 179,600 individuals could apply for employment authorization under this new rule in the first year, with 55,000 expected a year after that.

According to NBC News, of the 96,753 individuals granted H-4 visas in 2013, 86 percent were from Asian countries, with the overwhelming majority from India.

In enacting this new rule, DHS is following through on an announcement it made last year regarding two proposed rules that were part of its “continuing commitment to attract and retain highly skilled immigrants.” The other proposed rule was the removal of obstacles hindering certain groups of highly-skilled workers from remaining in the U.S. Under current regulations, employers of workers in E-3, H-1B1, or CW-1 status generally need to file a petition requesting the extension of the employee’s status well in advance of the initial authorized duration of status expires. Last year, the DHS announced an intention to make the following changes: (1) update regulations to include nonimmigrant highly-skilled specialty professionals from Chile and Singapore (H-1B1), and Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer; (2) clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without submitting a separate application to DHS for employment authorization; and (3) allow E-3, H-1B1, and CW-1 nonimmigrant workers up to 240 days of continued work authorization after the expiration date noted on their Form I-94, while their work visa extension request is pending. Specific rulemaking on this issue is still unresolved.

As we move toward a more global economy, many employers are choosing to hire highly-skilled foreign nationals to meet their employment needs and rule changes, such as the H-4 employment option for dependent spouses, will help remove some of the hurdles to hiring and retaining highly-skilled workers.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” said U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez in a press release. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Contact an Employment Immigration Attorney

The U.S. business immigration lawyers at the Shapiro Law Group focus on helping employers with all of their immigration issues, guiding clients through the process from start to finish. If you are an employer in need of immigration assistance, do not hesitate to contact us at (847)564-0712 to speak with our experienced U.S. employment immigration attorney.