USCIS Extends Employment Authorization to Certain H-4 Spouses

As comprehensive immigration reform remains an elusive goal, employers and foreign nationals are left coping with a lack of available visas for workers. In addition, this year’s cap on H-1B visas is expected to be reached immediately, further exacerbating this longstanding problem and leaving many employers and potential workers searching for alternatives. In this regard, help is on the way for the spouses of some H-1B visa holders. The H-1B visa is the primary visa category utilized by professionals to obtain employment authorization in the United States. In order to obtain an H-1B visa, an employer must sponsor a potential employee for a position that requires the minimum of a college degree. The spouses and children of those in H-1B status are classified as H-4 dependents. H-4 status does not provide work authorization for spouses and this limitation has negatively impacted the lives and careers of those wishing to work in the United States, as many have spouses who wish to work and so are reluctant to come to the United States, or want to return home, if they are unable to obtain employment authorization.

Due to a new administrative rule from the Department of Homeland Security, which is set to take effect May 26, certain H-4 spouses will now be able to apply for work authorization. The eligibility for work authorization is narrowly defined and is not available for the spouses of workers just beginning their H-1B status. Potential applicants must meet one of the following criteria to qualify: (1) the principal H-1B beneficiary’s employer must have started the permanent residence or “green card” process and obtained an approved Form I-140, Immigrant Petition for Alien Worker; or (2) the principal H-1B beneficiary must have been in H-1B status beyond the normal six-year limit and obtained a seventh-year H-1B approval based on a pending green card application by an employer. Thus, in order to be eligible, an H-1B holder must be fairly deep into the green card process, or have held H-1B status for a significant amount of time before their spouse would be able to file for employment authorization. From a policy perspective, the rule will help keep workers in the United States and will also encourage employers to sponsor green cards for their foreign national employees.

H-4 Filing Guidance