By Attorney Devin M. Connolly & Nancy E. Miller

The U.S. Department of Homeland Security recently announced that certain dependent spouses of H-1B non-immigrants will become eligible to apply for employment authorization. This change will become effective May 26, 2015, and is sure to help many married couples who are validly maintaining their H-1B and H-4 status.

An economic strain is created when a married couple is living in the United States as beneficiaries of non-immigrant visas and only one of them is lawfully permitted to be employed. The situation arises when one of the spouses is the beneficiary of H-1B petition that allows them to work in a specialized occupation.  Their spouse is eligible to reside in the U.S. in H-4 status, but historically has not been authorized to work in the U.S.

Despite the potential need for a second income, or the ability to make a meaningful contribution to the economy, these H-4s have not eligible to work.  With the upcoming regulatory changes, certain H-4 dependent spouses will now be eligible to apply for employment authorization.

Two groups of dependent H-4 spouses will be eligible to apply for work authorization.
The first group consists of spouses of H-1B non-immigrants who are the principal beneficiaries of an approved Immigrant Petition for Alien Worker.  The approved Alien Worker petition for the H-1B nonimmigrant can be for any of the various employment-based categories.  Moreover, the specific position for which the H-1B nonimmigrant was petitioned is not relevant, nor is it important for how long the petition has been approved. Finally, it is not a requirement that the H-1B employer be the same company that filed the Alien Worker petition.

The second group of eligible individuals consists of spouses of H-1B non-immigrants who have been granted H-1B status under certain provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (also known as AC21).  This means that the H-1B nonimmigrant has been granted H-1B status beyond the normal six-year limit. This extension may be granted to the H-1B nonimmigrant if they have an approved Alien Worker petition but they are not eligible to be granted adjustment of status (Green card) because the petition’s priority date is not current.  The extension may also be granted if the H-1B non-immigrant has a Labor Certification Application or an Alien Worker petition filed on their behalf a minimum of one year before reaching the six-year H-1B limit.  In this scenario the underlying Labor Certification Application or an Alien Worker petition must still be pending; it cannot have been denied.

The U.S. Department of Homeland Security has stated that allowing H-4 dependent spouses the opportunity to apply for employment authorization is “one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.”  They are hopeful that this change will help alleviate financial burdens and facilitate integration into American society.

The U.S. Citizenship and Immigration Service will begin accepting applications on May 26, 2015.  An eligible H-4 spouse will be eligible to start work immediately following the approval of their application.  They will be eligible to work full-time or part-time and can work in any occupation they choose.

It is important to remember that not all H-4 dependent spouses are eligible to be granted work authorization.  The U.S. Department of Homeland Security has specifically limited the program to only two categories of people.  Therefore, a person may not qualify simply because they have an H-4 visa.

If a person does have a valid H-4 visa, but they are not eligible to be granted to employment authorization, it may be necessary to explore other potential options.  Would they potentially be eligible for their own H-1B visa?  Do they have a prospective employer that would be willing to petition them for permanent resident status?  There may be other options available that have not been previously considered.

This exciting change from the U.S. Department of Homeland Security is most welcome.  It is sure to help a significant number of families.  In so doing, it will also help the American economy.  As always, a non-citizen should contact a knowledgeable and experienced immigration attorney to discuss their immigration history in depth before applying for any benefit under the Immigration & Nationality Act.

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