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USCIS Issues Final Rule Extending Work Eligibility to Spouses of Certain H-1B Visa Holders

linux-154544_640.pngU.S. Citizenship and Immigration Services (USCIS) issued a final rule in February 2015 extending employment authorization to dependent spouses of certain people who are in the U.S. on H-1B work visas. These dependent spouses are able to come to the U.S. with an H-4 nonimmigrant visa, but are excluded from employment. Completing this rule is part of President Obama’s immigration executive actions, which he announced in November 2014, with the goal of reducing financial burdens on guest workers and their families who are on a track to legal U.S. residence.

Federal immigration law provides H-1B nonimmigrant visas for workers in “speciality occupations” and fashion models. 8 U.S.C. § 1101(a)(15)(H)(i)(B). Spouses and dependent children of H-1B visa holders are permitted to come to the U.S. with an H-4 visa, which has the same duration as the H-1B visa. 8 C.F.R. § 214.2(h)(9)(iv). Prior to the new final rule from USCIS, they were not permitted to work unless they obtained their own nonimmigrant visa that included work authorization. This resulted in H-1B workers who brought their spouses and children to the U.S. being limited to one income.

The immigration executive action announced by the White House in November includes directives to USCIS and other agencies to “modernize, improve and clarify immigrant and nonimmigrant programs,” with the goal of “grow[ing] our economy and creat[ing] jobs.” One of the directives, according to a summary provided by USCIS, is to issue a final rule extending work authorization to H-4 visa holders whose H-1B visa holder spouses “are on the path to lawful permanent resident status.”

The new rule, published at 80 Fed. Reg. 10283 (Feb. 25, 2015), applies to H-4 visa holders who are the spouses of H-1B visa holders admitted under §§ 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21) of 2000. These provisions of the AC21 allow H-1B visa holders who are seeking to acquire legal permanent resident status to extend their stay in the U.S. longer than the six-year limit. Since these particular H-1B workers are presumably working towards integrating into American society, rather than preparing to return to their countries of origin at the end of six years, it is in their and their families’ interest to be able to increase household income. Allowing H-4 visa holders to accept employment also gives H-1B specialty workers greater freedom to explore their options–USCIS specifically mentions their potential contributions to entrepreneurship and science.

Eligible H-4 visa holders must submit Form I-765, the Application for Employment Authorization, along with supporting documentation and the $380 filing fee. USCIS will start accepting applications and issuing Employment Authorization Documents on May 26, 2015.

Immigration lawyer Samuel C. Berger represents individuals in the New York and New Jersey areas who would like to immigrate to this region through a family member or an employer, people who want to bring a loved one here, and businesses who want to hire a worker from overseas. To schedule a confidential consultation with a knowledgeable and experienced immigration advocate, contact us today online or at (212) 380-8117.

More Blog Posts:

Executive Actions on Immigration Part 1: The Context and the Benefits, New York & New Jersey Immigration Lawyer Blog, December 10, 2014
Supreme Court Will Consider Whether A U.S. Citizen May Take the Government to Court Over the Denial of a Visa Petition for an Immigrant Spouse, New York & New Jersey Immigration Lawyer Blog, November 12, 2014
U.S. Supreme Court’s Ruling Striking Down the Defense of Marriage Act Has Profound Impact on Binational Same-Sex Couples Seeking Immigration Benefits, New York & New Jersey Immigration Lawyer Blog, August 9, 2013
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