On Apr 15 2015 by Andrew J. Zeltner

USCIS Extends Employment Authorization to Certain H-4 Spouses

As comprehensive immigration reform remains an elusive goal, employers and foreign nationals are left coping with a lack of available visas for workers. In addition, this year's cap on H-1B visas is expected to be reached immediately, further exacerbating this longstanding problem and leaving many employers and potential workers searching for alternatives. In this regard, help is on the way for the spouses of some H-1B visa holders.

The H-1B visa is the primary visa category utilized by professionals to obtain employment authorization in the United States. In order to obtain an H-1B visa, an employer must sponsor a potential employee for a position that requires the minimum of a college degree. The spouses and children of those in H-1B status are classified as H-4 dependents. H-4 status does not provide work authorization for spouses and this limitation has negatively impacted the lives and careers of those wishing to work in the United States, as many have spouses who wish to work and so are reluctant to come to the United States, or want to return home, if they are unable to obtain employment authorization.

Due to a new administrative rule from the Department of Homeland Security, which is set to take effect May 26, certain H-4 spouses will now be able to apply for work authorization. The eligibility for work authorization is narrowly defined and is not available for the spouses of workers just beginning their H-1B status. Potential applicants must meet one of the following criteria to qualify: (1) the principal H-1B beneficiary’s employer must have started the permanent residence or “green card” process and obtained an approved Form I-140, Immigrant Petition for Alien Worker; or (2) the principal H-1B beneficiary must have been in H-1B status beyond the normal six-year limit and obtained a seventh-year H-1B approval based on a pending green card application by an employer. Thus, in order to be eligible, an H-1B holder must be fairly deep into the green card process, or have held H-1B status for a significant amount of time before their spouse would be able to file for employment authorization. From a policy perspective, the rule will help keep workers in the United States and will also encourage employers to sponsor green cards for their foreign national employees.

H-4 Filing Guidance

The H-4 employment authorization application must be accompanied by supporting documentation demonstrating eligibility under the rule or acceptable secondary evidence. If copies of the approved I-140 or H-1B extensions evidencing eligibility are not available, U.S. Citizenship and Immigration Services (USCIS) will accept secondary evidence such as the application receipt number(s) and/or the names of the petitioner and beneficiary, so that the application can be matched to the appropriate H-1B principal beneficiary. With regard to applications based upon seventh-year H-1B extensions, if secondary evidence cannot be obtained, USCIS is willing to consider two sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances. This should address the situation where the H-4 dependent spouse is unable to access any of the immigration documentation relating to the principal H-1B nonimmigrant, or the H-1B nonimmigrant’s prior employer.

USCIS will be revising Form I-765 to require that H-4 dependent spouses submit proof of the marriage to the H-1B nonimmigrant with the application. I predict that USCIS will require submission of the marriage certificate along with some evidence of marital bona fides, which could include evidence of joint property ownership, joint bank accounts or other assets, and cohabitation.

In addition, it is critical for the H-4 applicant to understand the initial period for which work authorization will be granted and the process for renewing their work authorization. USCIS will only issue an Employment Authorization Document (EAD) for the duration of the H-4 dependent spouse’s length of authorized stay in the United States, which can be up to a three-year period. Thus, applicants need to review their current I-94 expirations and make a decision regarding the optimal filing time. Moreover, it is also important that applicants maintain a passport that does not expire in the near future, so that they are not admitted to the United States for a shortened period of time and issued an abbreviated EAD approval. USCIS will allow applicants to concurrently file their I-129 (H-1B petition), I-539 (H-4 application to extend/change status) and I-765 applications. However, it should be noted that H-4 work authorization applications cannot be filed with expedited processing and that the EAD will need to be approved before an applicant is eligible to work.

The rule makes clear that USCIS will accept renewal applications up to six months in advance and it is thus incumbent upon the applicant to ensure that petitions are filed in a timely manner. USCIS also notes that applications should be processed in 90 days, but those who concurrently file for work authorization with a change or extension of status should expect a longer wait time. Earlier filing is necessary because the 90-day processing time will be counted from the approval of the change or extension of status. Thus, USCIS may not begin to adjudicate the work permit application until the end of the initial 90 days, and only after the adjudication of the underlying I-129 and/or I-539 filings. Hence, applicants should file their renewal applications well in advance to avoid any gaps in employment authorization.

Practical Considerations For Employers

Although this new policy does not provide work authorization for all H-4 dependent spouses, it is a welcome relief for the many spouses who have been unable to obtain work authorization due to the lack of H-1B visas and severe visa retrogression backlogs. In the coming months, this new policy will also require greater communication between human resources professionals and foreign national employees, as many H-1B employees will certainly be eager to begin the green card process quickly, so that their spouses can qualify for employment authorization. As such, employers may wish to update their immigration sponsorship policies in light of these important changes.

This article was published in The Legal Intelligencer on April 15, 2015.