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Good news for some. US Citizenship and Immigration Services (USCIS) will permit H-4 spouses of certain H-1B principal non-immigrants to receive employment authorization in the US from 26 May 2015. The change is to help spouses of H-1B visa holders who are in the process of obtaining a Green Card and who already have an approved immigrant worker petition.
The H-1B visa is to employ overseas nationals in a specialist occupation; usually highly-skilled individuals with at least a bachelors degree (or equivalent) employed in a role that usually requires you to have a bachelor's degree.
The new rule grants employment authorisation to the H-4 spouse of an H-1B visa holder where the H-1B visa holder is waiting for an immigrant worker visa due to visas currently being unavailable. The US already provides work authorization to the spouses of L-1 intra-company transfer visa holders, those on E-1 treaty trader and E-2 treaty investor visas and J-1 exchange visitors.
Eligible Applicants
H-4 dependent spouses of H-1B principal non-immigrants, who are beneficiaries of an approved I-140 petition based on 'green card' sponsorship by an employer, are eligible applicants under the new rule.
Due to processing delays in many I-140 immigrant visa classifications (e.g. EB-1, EB-2 or EB-3), and the limit on the number of visas available based on the country of birth of the I-140 spouse or beneficiary, it may not be viable for the beneficiary of an I-140 petition to progress directly to the final stage of the 'green card' process to apply for an adjustment of status to lawful, permanent resident.
Indian and Chinese individuals in particular have to wait for years to receive an available immigrant visa number due to significant backlogs.
Although the H-1B principal continues to be employment authorized, spouses accompanying them are currently prohibited from working for the entire length of time that an immigrant visa number is unavailable. Unless that is the H-4 spouse can come under the H-1B or some other type of work visa.
The introduction of the new rule allows the H-4 spouse to lodge an application for employment authorization during the backlog waiting period.
H-4 dependent spouses of H-1B principal non-immigrants, who qualify for post-sixth-year extensions of H-1B status based on American Competitiveness in the 21st Century Act (AC-21), are also eligible.
Normally, the H-1B status is limited to a total of six years. Exceptions do exist for people who meet certain conditions of the 'green card' process, which may or may not include approval of an I-140 petition.
Now, under the new rule, the H-4 spouse of an H-1B principal non-immigrant who qualifies for post-sixth-year AC-21 benefits can apply for employment authorization.
This rule does differ from more generous rules, that allow all L-2 and E-2 spouses to lodge an employment authorization application.
To apply under the new rule, H-4 dependent spouses who are eligible will be required to submit an I-765, 'Application for Employment Authorization' form, complete with supporting evidence and the $380 fee. This is required to acquire form I-766, the 'Employment Authorization Document (EAD).
Upon USCIS approval of an I-765 form and receipt of an EAD, an individual is permitted to work in the United States.
Help for families and employers
The purpose of the new rule is to help families of H-1B non-immigrants and to assist employers, indirectly, that find retaining their highly-skilled employees challenging because of an employee's long wait to earn lawful, permanent resident status. However, not everyone is able to apply for permanent residency and the Obama administration was quick to emphasize that this is not a blanket employment authorization program for H-4 spouses.
Applications for employment authorization
Under the new rule USCIS will be accepting employment authorization applications from May 26 2015, which will be 90 days after the publication of the new rule in the Federal Register.
Beneficiaries
The new stipulations will benefit H-4 spouses under the following circumstances:
- Where the H-1B visa holder is the beneficiary of an approved I-140 immigrant visa petition for which an immigrant visa number is not available, or
- Where the principal H-1B qualifies for a post-sixth-year extension of H-1B status in accordance with the American Competitiveness in the 21st Century Act (AC-21)
How does this rule affect employers?
It is likely that valuable H-1B staff will opt to stay in the US. Otherwise some H-1B visa holders may decide that they do not wish to wait any longer and decide to leave the US.
USCIS predicts that the number of people that qualify for employment authorization as a result of the new rule could reach 179,600 in the first year, plus a further 55,000 annually in the years that follow.
For more information, or to find out if you are eligible for an US work visa contact WorkPermit.com on 0344 991 9222.
