Navigating Immigration Reform: Employer Solutions for Practicable, Effective Reforms

Spouse and Partner Work Authorization

Issue | Council-SHRM Proposed Solution | Background

Issue
Family happiness is key to a successful work assignment. Yet, the United States is listed frequently as a difficult country to transfer employees to because spouses and permanent partners are often unable to work. In today's world of dual-career couples and nontraditional families, the United States stands out as a difficult place to transfer professionals. Extending employment authorization to expatriate spouses and partners will help U.S. employers grow innovation and jobs in America and will make available another source of talent to the future workforce of our country.

 

"Reforming U.S. immigration policies to provide employment authorization to accompanying spouses or partners of foreign national employees would bring about a long-awaited improvement to the experience of these families, particularly given the length of the green card backlog. Rational reforms like this are important to the ability of U.S. employers to continue to attract and retain top talent from around the world."

-Karen Jones, Vice President and Deputy General Counsel for HR Legal Group, Microsoft Corporation

 

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Council-SHRM Proposed Solution
U.S. immigration laws should aim to compete with other countries' best practices by providing immediate visas and work authorization for the spouses and partners of foreign professionals working in the United States. Specifically, employment authorization should be extended to dependents of H-1B, O-1 and TN visas, just as the United States permits spouses of E and L visa holders to work now (see Figure 1). While it is a positive development that the Obama administration is working toward a proposed rule to grant employment authorization to those spouses of H-1B visa holders who have been waiting for over six years in the green card queue, this incremental step is not enough. The U.S. immigration system will need larger reforms to address the totality of the spouse and partner work authorization issue. Moreover, a U.S. citizen or lawful permanent resident should be able to sponsor his or her partner for legal permanent residence (see Figure 2).

 

 

 

"This destructive policy tears families apart and forces hardworking Americans to make the heart-wrenching choice no American should have to make."

-Senator Patrick Leahy (D-VT), Press Release, February 13, 2013

 

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Background

Spouse and Partner Work Authorization Difficulties are Causing America to Lose Talent

In a recent survey, 96 percent of the over 175 employers surveyed said that partners of international assignees should be allowed to work in the host country for the duration of the assignment.[1] The survey uncovered why this issue is so important to employers:

  • Over 50 percent of employers surveyed reported that employees have turned down international assignments due to partner career or employment concerns.
  • Two-thirds of those surveyed said that dual-career and partner issues are becoming more important in their organization.
  • Seventy percent of HR managers felt they should do more to recognize dual-career expectations within a global mobility policy.

The United States, India, China, Indonesia and Brazil were most frequently mentioned as countries to which it was considered difficult to transfer employees because of spouse or partner concerns. The main reasons given for difficulties in the United States were: the lack of employment authorization for the spouses of certain visa holders (H-1B, O-1, TN), the lack of recognition of unmarried partners and the three-month waiting time to get an employment authorization document for spouses of E and L visa holders.[2]

 

"Today, thousands of committed same-sex couples are needlessly suffering because of unequal treatment under our immigration laws, and this is an outrage. Our Constitution guarantees that no class of people will be singled out for differential treatment – and LGBT Americans must not be excluded from that guarantee."

-Representative Jerrold Nadler (D-NY), Press Release, February 5, 2013

Countries' abilities to attract and retain talent are negatively impacted if they do not offer dual-career employment authorization opportunities, with another recent survey finding:[3]

  • Almost 90 percent of spouses and partners were employed before expatriation, but this figure fell to 35 percent once in the host country.
  • Three  quarters of spouses and partners who were not working wanted to work.
  • Sixty percent of respondents said that in the future, they would be unlikely to relocate to a country where it is difficult for a spouse or partner to get a work permit.
  • Eighty percent of spouses who did work in the host country said that this had a positive impact on the employee's willingness to complete the assignment as well as on health and well-being, family relationships and overall adjustment to the host country.
 

"Allowing spouses and partners to work is becoming the norm internationally. When speaking to other countries on this topic, we often see that it gets cross-party support, even in countries where broader immigration matters are hotly debated. The combination of international competitiveness and social or human rights arguments has a broad appeal."

-Kathleen van der Wilk-Carlton, Director, Permits Foundation

Greater Spouse and Partner Work Authorization Supported in Congress

In 2001, the 107th Congress passed a law to grant work authorization to the spouses of E and L visa holders. ACIP helped to spearhead this change, but Congress still must do more. Until a time when Congress passes legislation or the agencies grant work authorization to the spouses

of H-1B, O-1 and TN beneficiaries, as well as allow U.S. citizens and permanent residents to sponsor their non-married and same-sex partners for a green card, America will not be as competitive in retaining talent as other countries that provide these benefits to high-skilled professionals.

Most recently in the 112th Congress and in the beginning of the 113th Congress, legislation was introduced supporting both spouse and permanent partner work authorization, including:

  • Senator Orrin Hatch's (R-UT), Senator Marco Rubio's (R-FL), Senator Chris Coons' (D-DE) and Senator Amy Klobuchar's (D-MN) Immigration Innovation Act of 2013 (S. 169), which would grant H-4 spousal work authorization for the dependents of foreign nationals who are working on an H-1B visa;
  • Representative Zoe Lofgren's (D-CA) Immigration Driving Entrepreneurship in America Act of 2011 (H.R. 2161), which would have granted H-4 spousal work authorization for the dependents of foreign nationals who are working on an H-1B visa; and
  • Senator Patrick Leahy's (D-VT) and Representative Jerrold Nadler's (D-NY) Uniting American Families Act (S. 296/H.R. 519), which would have allowed U.S. citizens or lawful permanent residents to sponsor their partners for legal permanent residence, which yields the benefit of work authorization. As many as 40,000 binational same-sex couples could benefit from this reform.[4]

To remain attractive to top world talent, U.S. immigration policy should grant work authorization to spouses and permanent partners of foreign nationals in key visa categories.

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[1] Permits Foundation, "International Mobility and Dual Career Survey of International Employers," July 2012, http://www.permitsfoundation.com/docs/International_Mobility_and_Dual_Career_Survey_2012.pdf.

[2] Permits Foundation, "International Mobility and Dual Career Survey of International Employers," July 2012, http://www.permitsfoundation.com/docs/International_Mobility_and_Dual_Career_Survey_2012.pdf.

[3] Permits Foundation, "Expatriate Spouses and Partners Employment, Work Permits and International Mobility," January 2009, http://permitsfoundation.com/docs/permits_survey_summary.pdf.

[4] The Williams Institute, "Same-sex Couples and Immigration in the United States," November 2011, http://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/same-sexcouples-and-immigration-in-the-united-states.


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As strategic affiliates, the Council for Global Immigration (CFGI) and the Society for Human Resource Management (SHRM) help advance U.S. growth, innovation and job creation by supporting employers and their employees as they navigate the most pressing workforce and talent management issues, which includes reform of the U.S. immigration system. Learn more about ACIP at www.councilforglobalimmigration.org. Learn more about SHRM at www.shrm.org.

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