Work Permit for Certain H-1B Spouses Available in May

By Reuben S. Seguritan

March 11, 2015

On May 26, 2015, the United States Citizenship and Immigration Services (USCIS) will begin accepting applications for employment authorization of certain H-4 dependent spouses.

The Department of Homeland Security (DHS) issued the final rule on February 24, 2015. According to the DHS, this is an important element of President Obama’s executive actions on immigration announced on November 20, 2014.

The H-1B program is one way that U.S. employers are able to hire high skilled workers in specialty occupations such as teachers, engineers, accountants, computer programmers, architects, therapists, among others.  It has been frequently used by U.S. businesses to employ high-skilled foreign workers with degrees in science, technology, engineering and mathematics. The job requires as a minimum a bachelor’s degree or equivalent.

An H-4 dependent visa is available for the spouse and unmarried children under 21 of the foreign worker on H-1B status. The new regulation will provide work permits for H-4 dependent spouses of H-1B visa holders who are in the process of obtaining green cards through employment.

According to USCIS Director Leon Rodriguez, “Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps the U.S. businesses keep their high skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent resident. It also provides more economic stability and better quality of life for the affected families.”

To qualify for the benefit, the H-4 dependent spouse must show that his/her H-1B nonimmigrant spouse is either the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker or has been granted an H-1B extension under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended.

A foreign worker is allowed a maximum period of 6 years on H-1B status. Under AC21, an H-1B worker may file for an extension of their H-1B status beyond 6 years if he/she is unable to adjust status before the end of the six-year period mainly because of delays in the adjudication of employment-based green card sponsorships and the unavailability of a visa number.

A post-sixth year extension is available to H-1B workers under AC21 if a labor certification application or employment-based immigrant visa petition was filed on their behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. The labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.

Family members on H-4 dependent status are also eligible for the same period of extension granted to the principal H-1B beneficiary.

H-4 dependent spouses who are eligible for the work permit under this new rule must sign and submit Form I-765, Application for Employment Authorization. The completed form must be submitted with documentary evidence demonstrating their eligibility for the benefit along with the $380 filing fee. The check must be made payable to the U.S. Department of Homeland Security.

The USCIS, however, stressed that applications will not be accepted before the effective date of the new regulation on May 26, 2015.

Once approved, the qualifying H-4 visa holder will be issued an employment authorization document (EAD) which will allow them to work in the U.S. for the period indicated in the EAD. The validity of their EAD will be for the same period as their H-1B family member.

For the first year, the USCIS estimates around 179,600 applicants for work permit under this rule and 55,000 annually in the succeeding years.