Whether a work assignment is successful can often depend upon whether a spouse or partner can both live and work at an employee’s new location (see Figure 1). In today’s world of dual-career couples and nontraditional families, the United States can be a difficult place to transfer professionals. When Council for Global Immigration (CFGI) members were surveyed in recent years as to whether they have lost recruiting opportunities because spouses of H-1B visa holders were unable to get Spouse and Partner Work Authorization work authorization, nearly half of respondents said yes.[i] Without reforms to extend employment authorization to expatriate spouses and partners, the United States will continue to lose talent to more family-friendly locales.
Our immigration laws should ensure that employers have the ability to recruit, hire, transfer and retain high-skilled foreign national professionals, and providing spouse and partner work authorization helps. The United States must compete with other countries by granting immediate visas and work authorization to spouses and partners of foreign professionals working in the United States. Employment authorization should be extended to all dependents of H-1B, O-1 and TN visas, just as our current laws permit the spouses of E and L visa holders to work.
“A physician in our hospital has decided to return to India, instead of staying and waiting nine years for his green card to be approved, because his wife was unable to work here. His story is just one of many showing the value of H-4 work authorization. Expanding work authorization to all H-4s and other dependents in status categories like TN would benefit our ability to retain talent teaching and working in healthcare on our campus.”
- Laura C. Prince, Senior Immigration Specialist, University of Iowa, March 2015
Thirty countries now allow spouses and/or children to be employed or self-employed during an expatriate assignment, and many countries provide benefits to unmarried partners (see Figure 2).[ii] The resulting family satisfaction greatly contributes to the success of an assignment and the return on investment for the employer. The United States currently provides work authorization for spouses of E and L visa holders, and certain H-1B spouses.
The Supreme Court’s holding in United States v. Windsor paved the way for immigration benefits to couples whose same-sex marriages are lawful in the state or foreign country where they were celebrated, but this does not provide for recognition of committed but unmarried partners under our immigration law.
Spouse and Partner Work Authorization Difficulties Are Causing America to Lose Talent
In a recent survey from the Permits Foundation, close to 100 percent of employers surveyed said that partners of international assignees should be allowed to work in the host country for the duration of the assignment.[iii] The survey uncovered why this issue is so important to employers:
More than 50 percent of employers surveyed reported that employees have turned down international assignments due to a partner’s 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.
Brazil, China, Indonesia and the United States were most frequently mentioned as the 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.[iv]
“It makes it easier for a highly qualified employee to accept a temporary transfer if their partner doesn’t have to give up their own aspirations to work. That’s good for the family, good for business and good for the European economy.”
Kathleen van der Wilk-Carlton, Director, Permits Foundation, May 2014
Countries’ ability to attract and retain talent is negatively impacted if they do not offer dual-career employment authorization opportunities. Another recent survey from the Permits Foundation found[v]:
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 their ability to work 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.
Administrative and Congressional Support
President Obama’s executive action should grant work authorization to certain H-1B spouses awaiting a green card. Ninety-three percent of CFGI members surveyed in 2014 had an employee whose spouse would benefit from such an action.[vi] Nonetheless, it is hoped that this benefit will be extended to other visa categories such as O and TN, as well as to a broader range of H-1B spouses and children of age.
In the 113th Congress, legislation was introduced in both chambers and on both sides of the aisle supporting certain spouse and partner work authorization, including:
The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S. 744), which passed in the Senate, incorporated work authorization for dependents of H-1B workers.
Immigration Innovation Act of 2013 (S. 169), sponsored by Senator Orrin Hatch (R-Utah) and a bipartisan group of Senators, grants spousal work authorization for all the dependents of foreign nationals who are working on an H-1B visa.
Securing Knowledge-based Immigrants and Lifting Levels of STEM (SKILLS) Visa Act of 2013 (H.R. 2131), by Representative Darrell Issa (R-Calif.) and supported by Chairman Bob Goodlatte (R-Va.), contained work authorization for all dependents of H-1B workers.
Uniting American Families Act (S. 296/H.R. 519), by Senator Patrick Leahy (D-Vt.) and Uniting American Families Act (S. 296/H.R. 519), by Senator Patrick Leahy (D-Vt.) and Representative Jerrold Nadler (D-N.Y.), 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.[vii]
To remain attractive to top world talent, U.S. immigration policy should grant work authorization to spouses and partners of foreign nationals in key visa categories.
Download this information as a PDF.