Expanded Work Authorization for Spouses of H-1B Visa Holders

New rules to benefit the families of H-1B visa holders went into effect on May 26,, 2015. The Department of Homeland Security (“DHS”) granted certain spouses with H-4 visas the ability to seek employment authorization so they could work in the US. The purpose behind the new regulation is to help the US attract and retain highly skilled foreign workers and minimize the disruption to US businesses which results when H-1B nonimmigrants choose not to remain in the US and pursue lawful permanent resident status. Prior to the May regulation, the families of employees with H-1B visas would get an H-4 visa, which did not allow them to work in the US. As a result, the family would have to rely on the H-1B nonimmigrant as sole support, a burden that would cause some workers to leave the US. It was especially burdensome to H-1B employees who have a long waiting period to get a green card as is the case with workers from countries with low annual quotas for green cards, such as India and China.

The regulation only applies to spouses of H-1B nonimmigrants, not other family members with H-4 visas. In addition the H-1B nonimmigrants must have already started the process of seeking employment-based lawful permanent resident status. Specifically, H-4 spouses are eligible if their spouses:
- Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Have been granted H-1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). AC21 permits H-1B workers seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.
In order to apply for work authorization, the H-4 spouse must file an I-765 form. https://www.uscis.gov/i-765 Spouses of L-1 and E-2 visa holders were already eligible to work in the US prior to the May 26th rule by filing for work authorization. L-1 visas apply to employees who are intracompany transfers. E-2 visas apply to treaty investors – individuals from certain treaty countries who are investing a substantial amount of capital in a US business. However, H-4 spouses did not have this right prior to the new rule. Unfortunately, the new regulation has drawn unwanted attention from at least one group. Save Jobs USA, a group representing former Southern California Edison Co. computer workers, filed a lawsuit April 23rd challenging the rule stating the DHS does not have the authority to expand the H-1B and H-4 rules. The plaintiffs claim their jobs have been replaced by these foreign workers. On July 1, a D.C. federal court judge refused to throw out the case. However, the DHS and immigrant groups do not expect the group will prevail in its lawsuit.
Please contact us if you are an H-4 spouse and want to prepare an application for work authorization.
Read More Less »

By Ruthie Sanchez | Published July 13, 2015 | Posted in Employment Related, Visas, Your Family | Tagged H-1B visas

Cancel reply

[…] New guidance regarding H1-B visas allows spouses of H-1B workers to apply for work authorization for themselves. This means H1-B employees do not have to be the sole support of their families and eases their financial burden. […]

Immigration News from ILW.COM

FAQs

Q: My employer wants to sponsor me to get a green card – can they?
If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.
Q: How can I get a work permit?
A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.
Q: Can I apply for deferred action now?
As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.
Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?
The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.
Q: Who can I contact for more help or information?
It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status. Do not take advice about your immigration case from a notary public or an immigration consultant. The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice. Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.
Q; What should I do now?
You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.
Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?
If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.
Q: My grandma is sick back home – can I go visit her?
Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.
Q: Can our company sponsor an employee to get a green card?
If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.
Q: What is a work permit?
A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

our attorneys

Conrad E. Pollack, Esq.

Managing Partner; Head of Immigration Department

View Biography

Nelson A. Madrid, Esq.

Partner

View Biography

Allen E. Kaye, Esq.

Of Counsel

View Biography
Yi Zhao, Esq.

Immigration Attorney

View Biography

Shruti Bali, Esq.

Business Immigration Attorney

View Biography

Alexandra D. Bondikov, Esq.

Immigration Attorney

View Biography