Employment Authorization for H-4 Spouses: USCIS Publishes Updated Form and FAQs

On May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) began accepting applications for employment authorization from certain H-4 spouses of H-1B temporary work visa holders. The final rule is in place. And USCIS has now published updated an updated form with instructions (rev. Feb. 13, 2015), filing tips, and FAQs.

Also, for now at least, the U.S. District Court for the District of Columbia has pushed aside a challenge to the H-4 employment rule by denying a motion for preliminary junction based on allegations that USCIS violated the Administrative Procedures Act. Save Jobs USA v. DHS, 15-cv-615.

Applicants should feel free to contact our law firm for assistance with the process.

Background

U.S. businesses use the H-1B visa to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  H-1B workers’ spouses and children are admitted to the U.S. with H-4 visas. Normally, an H-1B can work in the U.S. for a maximum of 6 years, although certain exceptions apply.

Under prior regulations, USCIS did not extend employment authorization to H-4 spouses. But a “We the People” online petition took up the cause of H-4 spouses in 2011. The final rule reflects some of the themes raised in that petition. USCIS states that issuing work authorization to some H-4 spouses will:

• reduce the economic burdens and personal stresses that H–1B nonimmigrants and their families may experience during the transition from nonimmigrant to LPR status while, at the same time, facilitating their integration into American society.
• support the goals of attracting and retaining highly skilled foreign workers.
• ameliorate certain disincentives for talented H–1B nonimmigrants to
  permanently remain in the United States and continue contributing to the U.S. economy as lawful permanent residents. This is an important goal considering the contributions such individuals make to entrepreneurship and research and development, which are highly correlated with overall economic growth and job creation; and
• bring U.S. immigration policies concerning this class of highly skilled
  workers more in line with those of other countries that are also competing to attract and retain similar highly skilled workers.

The final rule focuses on granting work authorization to H-4 spouses of H-1B workers who are seeking LPR status. The process of applying for lawful permanent resident status (i.e., LPR status, also known as a “green card”) in the U.S. can be prolonged, taking years (up to 10 years in the case of Chinese and Indians in the EB-3 preference category). The most common process is that

(a) the employer obtains a labor certification from the U.S. Department of Labor showing that no qualified U.S. worker has applied for the position offered to the foreign national,
(b) the employer then files the Form I-140 with U.S. Citizenship and Immigration Services,
(c) the worker is put on a waiting list, and
(d) the foreign national files a Form I-485, Application to Adjust Status.

Essentially, the H-4 work authorization proposal provides a bit of relief to business and families stuck in the long green card process. The length of the waiting list is an intolerable symbol of our broken immigration system.

U.S. businesses employing H–1B nonimmigrants suffer disruptions when such workers are required to leave the United States at the termination of their H–1B status as a result of these delays. To ameliorate those disruptions, Congress previously enacted provisions in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) that allow for the extension of H–1B status past the sixth year for workers who are the beneficiaries of certain pending or approved employment-based immigrant visa petitions or labor certification applications.

The final rule is focused on essentially the same families meant to benefit from AC21. “These individuals are American families in waiting,” as U.S. Commerce Secretary Penny Pritzker has said.

Which H-4 Spouses Are Eligible for Employment Authorization?

An H–4 spouse of an H–1B worker may be eligible for an EAD only if:

1. the H–1B worker is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
2. the H–1B worker has been granted an extension of H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Such an extension can be granted if–prior to reaching the end of the 6th year in H-1B status–365 days have passed since the filing of a labor certification application or of a Form I-140 but the worker is still waiting for permanent residence (i.e., the labor certification application has not been withdrawn, denied, or revoked).

To qualify for an EAD, the H-4 spouse must be maintaining lawful status, and that in turn requires that the H-1B worker be in lawful status. For example, engaging in unlawful employment would be a violation of either’s status.

What Is the Procedure to Apply for an EAD?

Beginning May 26, 2015, the H-4 spouse may file a Form I-765, Application for Employment Authorization, with the filing fee of $380 and supporting documents.

You must actually be in the U.S. in H-4 status to be eligible to file. The application may be filed together with a Form I-539, Application to Extend/Change Nonimmigrant Status, as well as the H-1B worker’s Form I-129, Petition for Nonimmigrant Worker. It may be filed up to six months in advance of the requested start date.

For now, a paper I-765 must be filed. USCIS will notify the public in the future when it is prepared to begin accepting electronic filings by H-4 spouses.

Currently, USCIS will not allow premium processing of I-765s for H-4s (i.e., 15-day processing for an additional fee), although an underlying Form I-539 seeking extension or change to H-4 status may be premium processed if accompanying a Form I-129 for the H-1B worker seeking premium processing.

The filing address will depend on whether (a) you are also seeking to extend or change to H-4 status; and (b) your H-1B spouse is filing a Form I-129.

The 90-day period for adjudicating the Form I-765 filed together with Form I-539 does not begin until USCIS has determined whether you are eligible for the underlying H-4 nonimmigrant status, whether your spouse is eligible for the underlying H-1B nonimmigrant status, or both.

An H-4 spouse’s work is not authorized until the EAD is actually issued.

What Supporting Documents Are Required?

File the following supporting documents along with the Form I-765 and filing fee:

1. Evidence the H-1B worker is seeking LPR status. Specifically:

You may show this by submitting a copy of the H-1B nonimmigrant’s Form I-797 approval notice for Form I-140;

OR

Evidence that the H-1B nonimmigrant has received an extension of stay under AC21 sections 106(a) and (b). You may show this by submitting:

(a) a copy of the H-1B nonimmigrant’s passports, prior Forms I-94 (Arrival/Departure Record), and current and prior Forms I-797 for Form I-129, Petition for a Nonimmigrant Worker; and

(b)  Evidence to establish one of the following bases for the H-1B nonimmigrant’s extension of stay: either (a) Based on Filing of a Permanent Labor Certification Application. Submit evidence that the H-1B nonimmigrant is the beneficiary of a Permanent Labor Certification Application that was filed at least 365 days prior to the expiration of the six-year limitation of stay. You may show this by submitting a copy of a print out from the Department of Labor’s (DOL’s) website or other correspondence from DOL showing the status of the H-1B nonimmigrant’s Permanent Labor Certification Application. If DOL certified the Permanent Labor Certification, also submit a copy of Form I-797 Notice of Receipt for Form I-140 establishing that the Form I-140 was filed within 180 days of DOL certifying the Permanent Labor Certification; or (b) Based on a Pending Form I-140. If the preference category sought for the H-1B nonimmigrant does not require a Permanent Labor Certification Application with DOL, submit evidence that the H-1B nonimmigrant’s Form I-140 was filed at least 365 days prior to the expiration of the six-year limitation of stay and remains pending. You may show this by submitting a copy of the Form I-797 Notice of Receipt for Form I-140.

2. Evidence the applicant is currently in H-4 status (e.g., Form I-94 or Form I-797 granting an extension of or change to H-4 status) or an accompanying Form I-539 with $290 filing fee applying for change to H-4 status.

3. Proof of marriage to the H-1B worker (e.g., marriage certificate with certified English translation, if applicable)

4. A government-issued ID with photo (e.g., last EAD or biometric page from your passport)

5. Two identical two-by-two-inch passport-style color photographs of yourself.

6. In certain cases, it may also be wise to submit:

• evidence of the validity of the marriage (e.g., evidence of joint ownership of assets, joint filing of tax returns, etc.) because if the adjudicating officer suspects marriage fraud, the case may be referred to a local fraud unit for further investigation.
• evidence the H-1B worker is maintaining lawful nonimmigrant status; for example, passport, Form I-94, most recent W-2 and paystub.

How Long Will the EAD Be Valid?

USCIS generally will issue the employment authorization document (EAD) valid for the same period as the spouse’s H-4 status, which may be as long as three years, but must not exceed the H-1B worker’s approved period of stay. Of particular note:

• An H-1B worker seeking an extension of status on the basis that 365 days or more have passed since filing of a labor certification or Form I-140 is eligible is eligible for an extension in just 1-year increments. The H-4 spouse’s EAD will thus be limited.
• An H-1B worker who is the beneficiary of an approved Form I-140 filed in the employment-based 1st, 2nd, or 3rd preference categories and would be eligible for lawful permanent resident status but for the fact that the U.S. Department of State Visa Bulletin shows they are affected by a per-country waiting list for an immigrant visa number may be granted an extension of H-1B status for a period of up to 3 years. Currently, certain Chinese and Indian H-1B workers are eligible for H-1B extensions on this basis. The H-4 spouse’s EAD may be granted for the same period.

If USCIS Delays Adjudication, Is the H-4 Spouse Eligible for an Interim EAD?

Regulations currently allow USCIS to issue an “interim” EAD if a Form I-765 isn’t adjudicated within 90 days of filing. For purposes of H-4 EADs, that 90-day clock is not triggered under USCIS has already made a determination to extend the H-4 spouse’s status (which often first requires a determination to extend the H-1B worker’s status).

My H-1B Spouse’s Approved Form I-140 was Filed by a Previous Employer. Am I Eligible for Employment Authorization?

For you to qualify for employment authorization based on your H-4 status, your H-1B spouse must have been granted H-1B status under sections 106(a) and (b) of AC21 or be the beneficiary of an approved Form I-140. USCIS does not require that the approved Form I-140 be filed by your spouse’s current employer or by the same employer who filed your H-1B spouse’s Form I-129.

Can the EAD Be Revoked?

If either the H-1B worker or the H-4 spouse violates the terms of their nonimmigrant status, USCIS may seek to revoke the EAD.

Why the Final Rule Is Still Too Narrow

The Feb. 25, 2015, final rule adopts without significant changes a USCIS proposed rule from May 12, 2014. Nearly 13,000 people submitted comments during the proposed rule’s 30-day comment period, many arguing that the final rule should cover all H-4 spouses, but as discussed above the final rule covers just certain H-4 spouses of H-1B nonimmigrants who are seeking lawful permanent resident (LPR) status.

The regulatory goals claimed by USCIS (attracting and retaining highly skilled immigrants; attracting new businesses and new investment to the U.S.; giving the U.S. an edge in competing with other countries for talent; and ameliorating personal and economic hardship for the families of H-1B workers) would be better served by authorizing all H-4 spouses of H-1Bs to work. Mostly wives, their professional and technical skills can grow scale if relegated to involuntary housewife status. Their families’ bank balances are impacted by having only one breadwinner. They can be lonely and depressed as strangers in a new country with no access to the self-esteem of work or the social outlet provided by a workplace. They are ineligible for social security numbers, unable to open bank accounts, and in some states ineligible for driver’s licenses. The power imbalance between working husband and stay-at-home wife can stress the relationship. In some cases, this leads to domestic violence or suicidal thoughts.

There’s no straight path for H-4 spouses to apply for H-1B work visas. It’s difficult to find an employer because of the high government filing fees the employer must pay to sponsor an H-1B worker. And even after the employer offers the H-4 spouse a job, hires an immigration attorney to file the petition, and writes the check for the filing fees, still approval of the petition is a crap shoot. Due to the annual quota, in years like 2014, most H-1B petitions are rejected in a lottery process.

Doug Stump, President of the American Immigration Lawyers Association, was right when he characterized the USCIS rule as an “important” step but too narrow in focus: “only the spouses of H-1B workers who have passed some of the hurdles to receive an employer-sponsored green card will be eligible. That means a relatively narrow group of people will be helped by this change, while many H-1B visa holders’ spouses will remain stuck in neutral, unable to contribute to their families or our country’s economy.”

Moreover, if USCIS is serious about winning the international talent war, the U.S. must match other developed countries that routinely authorize foreign workers’ trailing spouses to work.  “Allowing H-1B spouses to work would be an important change. Sometimes people aren’t willing to come to the U.S. if their spouse can’t work,” says Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. Others “tire of waiting for green cards [without the ability to work] and leave the country to work for our competition, as U.S. Commerce Secretary Penny Pritzker has said. The spouses of an H-1B workers shouldn’t be forced to choose between having a career in her home country and being unemployed but together with her family in the U.S. The U.S., by statute, already provides work authorization to the trailing spouses of L-1 intracompany transfer visa holders and E-1/E-2 treaty traders and investors. And USCIS has promulgated regulations to grant work authorization to the spouses of J-1 exchange visitors.

In deciding the scope of H-4s to be granted employment authorization, USCIS isn’t limited Congress’ intent in enacting AC21. Of course, if Congress had intended that AC21 grant EADs to certain H-4s, Congress would have said so. It may be true that H-4s who have been out of work for 6 years but are seeking LPR status have the most sympathetic case for EAD eligibility. But the policy reasons reviewed above show that all H-4 spouses of H-1Bs should be authorized to work, not sidelined for 6 years. That would better implement the Immigration and Nationality Act as a whole.

It should also be noted that USCIS found that the final rule will not negatively impact U.S. workers. Critics, such as U.S. Senator Jeff Sessions (R-AL), say that H-4 spouses shouldn’t be allowed to compete for jobs with Americans. In essence, the argument is that a couple shouldn’t get a “two-for-one” when an H-1B visa is granted. But the final rule asserts that allowing H-4 spouses to work would have a “negligible impact on the U.S. labor market given the size of the U.S. civilian work force” of over 155 million. Further, it does the American public no good to force H-4 spouses sit idle at home. The public is better served by unchaining their productivity by employment or starting businesses, and allowing them to spend their income in the U.S. economy. That would better serve USCIS’ goal of  “attract new businesses and new investment to the U.S.”

The final rule affirms that USCIS “may consider expanding H-4 employment eligibility in the future.” That’s a step worth taking.

Learn more about Work Authorization for H-4 Spouses

• Read the Department of Homeland Security’s final rule
• Read the Department of Homeland Security proposed rule, press release, and fact sheet.
• Read the American Immigration Lawyers Association’s comments on the proposed rule
• Listen to NPR’s Here & Now on “Independence or Marriage” about H-4 spouses. The segment begins at about 4 minutes and 30 seconds into the show.
• Watch a PBS To the Contrary segment about H-4 spouses on YouTube.
• Read the “H-4 Visa, a Curse” blog by an advocacy group seeking work authorization for H-4 spouses.

This article was co-authored by Jacqueline Lentini McCullough and Gary Chodorow.

Ms. Lentini is an immigration attorney based in Illinois with extensive experience in H-1B visas. Ms. Lentini can be reached at lentinivisas.com, +1.630.262.1435, or jacki@lentinivisas.com.

Mr. Chodorow (乔德睿) is an immigration lawyer who has helped businesses, investors, families, and others with U.S. and China visas, permanent residence, and citizenship matters for more than 20 years. Gary also is a founding member of the American Immigration Lawyers Association’s Asia-Pacific chapter, co-chair of the American Chamber of Commerce-China’s visa committee, and adjunct professor of law at Chicago-Kent School of Law.

For more information regarding this topic and employment immigration in general, please contact us or schedule a consultation.