Work authorization for certain H-4 spouses starting May 26, 2015

On February 24, 2015,  US Citizenship and Immigration Services (USCIS) Director León Rodríguez announced that starting May 26, 2015, spouses of certain H–1B workers may apply for employment authorization and be able to work in the US (Under current regulations, H-4 spouses are not allowed to work.).

In its press release, USCIS noted that, “Allowing spouses of these [H-1B] visa holders to legally work in the United States makes perfect sense. . .It helps US businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents.”

Not all H-4 dependent spouses, however, will be eligible for work authorization. The rule allows work authorization only for those H-4 dependents whose H-1B spouse has already started the process of seeking lawful permanent residence through employment.

For an H-4 applicant to be eligible for work authorization, their H-1B spouse:

1. Must have an approved Form I-140 petition; or

2. Has a labor certification case that has been pending for over 365 days and has been granted an extension of his or her H-1B status beyond the six-year limit, under the American Competitive in the Twenty– first Century Act of 2000 (AC 21).

It is also critical that both the H-1B and H-4 visa holders be in full compliance with the terms of their existing visas. For example, if the H-1B visa holder is no longer working for the petitioner, is not working in the position or at the wage specified in the petition, or the H-4 is already working, etc., they may have problems in applying for H-4 work authorization. This is because USCIS typically checks for past compliance before granting future benefits.

Many H-1B visa holders are already several years into the validity period of their H-1B visa, but have not been petitioned by their employer for a green card. Under this new rule, for the H-4 spouse to be eligible to apply for work authorization, the H-1B worker must have already started the process of seeking lawful permanent residence through an employer’s sponsorship. This rule may be all the more reason for the H-1B visa holder to finally ask his or her employer to start the labor certification process. After all, I am sure your H-4 spouse would love to get a job, work, and help earn money for your household, rather than sitting at home.

If you are in H-4 status, and believe you may be eligible for work authorization (once this rule goes into effect on May 26, 2015), seek the advice of an attorney to evaluate your (and your H-1B spouse’s) situation, to determine your eligibility.

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