Certain Spouses of H-1B Holders Authorized to Work

By Roy Maurer February 26, 2015

About 180,000 spouses of high-skilled foreign guest workers will be allowed to file for work authorization in the United States beginning May 26, 2015.

U.S. Citizenship and Immigration Services (USCIS) announced Feb. 24, 2015, that select H-4 visa holders—the spouses of H-1B workers who have been approved to seek employment-based lawful permanent resident status or whose H-1B status has been extended beyond the six-year limit—will be eligible for employment authorization.

Presently, H-4 visa holders are prohibited from earning an income.

The rule is the first of several reforms geared toward high-skilled immigrants promised in President Barack Obama’s November 2014 executive actions on immigration.

The Council for Global Immigration and the Society for Human Resource Management commended the announcement.

“Allowing spouses of highly educated foreign-born professionals to work here eliminates an unnecessary burden for … U.S. employers, in the competition for top world talent. Improving their ability to attract and retain employees will pay dividends to the U.S. economy and American job creation,” the organizations said in a joint statement. “Given all the good that work authorization brings, we believe it should be extended to all employment-based classes of dependent spouses and partners, and it will remain a priority for our members.”

This was one of the least controversial proposals in Obama’s executive action, said Andrew Wilson, a partner in the immigration law firm Serotte Reich Wilson, based in Buffalo, N.Y. “I would have liked to see employment authorization for all H-4s, but this will be helpful to many individuals … I’ve already received many calls and e-mails from excited H-1B holders,” he said.

Wilson said he’s received many inquiries over the years about the ability of an H-4 spouse to work and the stress it was causing the H-1B worker. “I know of H-1B individuals who have left employment to return home because of this issue, as well as individuals who decided to not come at all because of the lack of work permission for a spouse. In some cases, this was a disappointing blow to the U.S. employer who really wanted that individual.”

USCIS Director Leon Rodriguez explained during a press teleconference that the change will also bring U.S. immigration policies more in line with laws of other countries that “compete to attract similar highly skilled workers.”

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to receive an Employment Authorization Document (EAD). Once the H-4 spouse receives an EAD, he or she may begin working in the United States.

Applicants will be required to show supporting evidence to include proof of marriage, proof of H-1B and H-4 status, and proof that the H-1B holder was either approved to seek legal permanent resident status or has received an H-1B extension under the American Competitiveness in the Twenty-first Century Act of 2000.

H-4 spouses won’t be required to show economic need for employment in order to obtain an EAD. There will not be a cap on the number of EADs issued to H-4 holders, nor any prohibitions on working for the same employer as their spouses or restricting certain occupations.

Big Win for the South Asian Community

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years.

Indians receive the majority of H-1B visas, with most working in science, technology and engineering, according to Neil Ruiz, associate fellow at The Brookings Institution Metropolitan Policy Program. Three-fourths of H-4 holders are from South Asia, mostly young women who left behind professional careers in their home countries when they immigrated to the United States with their husbands.

As a result, South Asian workers in the U.S. have been disproportionately affected, said Anantha Paruthipattu, principal attorney at Paruthipattu Law Firm, based in Herndon, Va.

Paruthipattu noted that while H-4 dependent spouses have faced “years of personal frustration and stress,” dependent spouses of other visa category holders such as L and E visa holders, are eligible to work. “USCIS has now removed this disparity and … tens of thousands of these spouses, especially in the South Asian community, will benefit,” he said.

“The new rules will allow America to tap into a pool of talented people that have, until now, been disregarded, people who can now contribute to society as they have desired for so long,” said Tahmina Watson, an immigration attorney and owner of Watson Immigration Law in Seattle.

Watson is referring to people like Upasana Kone, a former public relations executive who hasn’t been able to work since moving from India to the U.S. in 2014 with her husband, an engineer at Microsoft on an H-1B visa. “It’s almost like you don’t even look at us,” she told NPR Feb. 25, 2015. “It hurts your self-esteem, your independence. It kind of kills your confidence slowly but surely.”

Green Card Solution

IEEE-USA, representing engineering, computing and technology professionals in the U.S., supports work authorization for H-4 visa holders but continues to advocate for a green card solution.

“It’s good that certain spouses of H-1B employees will now be able to work legally in the United States,” IEEE-USA President Jim Jefferies said. “But it would be better if we delivered actual green cards promptly, since that would allow spouses to work without all this extra red tape.”

When married foreign workers receive an employment-based green card, their spouses also get legal permanent residency, including work authorization.

It’s important to remember that most H-1B workers are never sponsored for green cards, particularly if they work for outsourcing companies, Jefferies said.

Companies that hire H-1B workers may see an increased eagerness among H-1B employees to initiate the green card process immediately in order to qualify their spouses for H-4 employment authorization as quickly as possible, said Eric Bord, a partner in Morgan Lewis’ labor and employment practice, based in Washington, D.C.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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