IMMIGRATION UPDATE: A Small Step in the Right Direction

Monday, March 2, 2015

Until recently, the U.S. Citizenship and Immigration Services (USCIS) did not allow the dependent spouses of H-1B (specialty occupation) visa holders to engage in any form of employment while living in the U.S.  H-4 visa holders were unable to obtain a Social Security number and were quite limited in the activities they could engage in over the course of their stay in the U.S.  By contrast, spouses of L-1 (intracompany transferee) visa holders have been allowed to obtain employment authorization from USCIS and work in the U.S. without limitation for many years.

As the result of new regulations proposed last year, effective May 26, 2015, USCIS will begin granting employment authorization to certain H-4 spouses of H-1B visa holders.   According to USCIS, this new employment eligibility is an important element of President Obama’s immigration executive actions and one of several initiatives underway to “modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.”

Not all H-4 visa holders will be eligible to work, however.   Employment authorization will be limited to H-4 spouses – not dependent children -- of H-1B nonimmigrants who are the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted H-1B status under the American Competitiveness in the 21st Century Act of 2000 (AC21), which permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six-year limit on their H-1B visa status.

To commence the process, eligible H-4 visa holders must file USCIS Form I-765, Application for Employment Authorization, with the required supporting evidence and the $380 filing fee. USCIS will begin accepting applications on May 26, 2015.  Upon approval of the Form I-765 and issuance of the EAD, the H-4 spouse may begin working in the U.S. in any capacity, for any employer.  These new H-4 EADs will have a duration of no more than three (3) years.

When they commence employment, these H-4 visa holders must rely on their EADs to satisfy the I-9 employment eligibility verification process.  Although employers need to closely track the expiration dates that appear on the corresponding EADs provided by their new hires to remain in compliance with I-9 obligations, it is the H-4 visa holder’s responsibility to ensure that they maintain their employment authorization without interruption.