U.S. to provide work permits to spouses of H-1B visa holders from May 26


Marching ahead with President Obama’s executive action on immigration reform the Homeland Security Department announced on Tuesday that as of May 26, it will begin granting work permits to the spouses of H-1B visa holders – skilled foreign workers who are seeking permanent resident status in the U.S.

Under existing laws, spouses of H-1B visa holders, many of whom are Indians, are not eligible to work legally.

Who is eligible?

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B (nonimmigrants seeking lawful permanent residence to work) status permitting to remain in the United States beyond the six-year limit on their H-1B status.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps U.S. 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. It also provides more economic stability and better quality of life for the affected families.”

– León Rodríguez, Director (USCIS)

How to apply for spouse work permit (EAD)?

H-1B Spouses can start applying for work visa from May 26, 2015 with the U.S. Citizenship and Immigration Services (USCIS).

Under the rule, eligible H-4 dependent spouses:

  • must file Form I-765, Application for Employment Authorization, with supporting evidence and
  • the required $380 fee in order to obtain employment authorization and

When can dependent spouse start working?

Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an I-766, Employment Authorization Document (EAD), he or she may begin working in the United States.

USCIC, a division of DHS, estimates that as many as 179,000 foreigners will be eligible to apply for employment authorization under the new rule in the first year and 55,000 annually in subsequent years.”

Is H-4 amendment required in an H1B transfer?

No. An H-4 does not have to be amended, when the principal transfers his H-1B with a new employer.

However, an H-4 extension would be required, if the H-4 I-94 is about to expire.

  • An H-4 visa is not employer-specific. Accordingly, when the H-1B visa holder changes employers, no action is required to amend the status of his or her H-4 dependents.
  • However, since the H-4 status is dependent on the principal H-1B, it is absolutely necessary that the principal maintains a valid H-1B status and complies with all regulations of the H-1B status.
  • If H-1B can be deemed out of status due to any violations of the H-1B regulations, the H-4 would also be considered out of status.

H-4 Extension

  • When an H-1B employer files a new or amended petition for principal H-1B’s extension, the dependents on H-4 should also apply for an extension of status (I-94), either along with the H-1B extension or separately soon after.
  • It should be noted that the H-1B employer is not responsible to file for the H-4 extension, as H-4 is not employer specific. H-4 status is entirely dependent on the H-1B employee, and hence, the principal should be mindful of applying for the H-4 extension before the H-4 status (I-94) is about the expire.
  • There are many cases when H-1B employees forget about the H-4 extension, and as a result the H-4 dependents can be deemed out-of-status if their I-94s have expired.
  • The 3/10 year bar will be applied, and “unlawful stay” in the United States will begin accruing after the I-94 of H-4 dependent(s) expires.

Can an H4 change status to H1B if maximum time allowed on H4 is about to expire?

H-1B and H-4 maximum time period allowed

  • H-1B may be admitted for maximum of 6 years.
  • H-1B extensions are possible beyond 6 years under AC21 (American Competitiveness in the Twenty First Century Act), if H-1B’s Labor Certification (“LC”) or Greencard Petition (“I-140″) has been filed and is pending or approved.
  • The 6-year limit and AC21 regulations also apply to H-4 spouses and children. H-4 dependents would obtain extensions based on principal H1B’s extension status.
  • At the end of the maximum period, H-1B must either change to a different status (other than from H to L) or depart the United States.
  • If H-1B leaves the United States and stays outside for at least one year, The H1B clock will “reset” and would make him/her eligible for a new six-year period of admission in H-1B status. If the 6 year period has expired the new H-1B petition would fall under “H-1B statutory cap”.

H-1B and H-4 after six (6) years can switch positions with each obtaining a new six (6) years

  • An H-4 may change to H-1B because time spent in H-4 status is not counted toward the 6-year maximum.
  • An H-4 dependent can subsequently becomes an H-1B principal who would be entitled to the maximum period of stay applicable to the classification. At the same time the H-1B holder could become H-4 dependent since he/she has exhausted the maximum stay allowed. This promotes family unity by affording each qualified spouse the opportunity to spend six (6) years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six (6) year maximum period. For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. However, upon the switch, the new “principal H-1B holder” would be subject to the H-1B cap if not independently exempt.

Switching statuses between H-4 and H-1B

The change of status application from H-4 to H-1B and H-1B to H-4 will have to show that until now:

  • H-4 complied with the requirements of accompanying or joining the H-1B
  • H-4 maintained valid nonimmigrant status (e.g. H-4 should not have been employed since not authorized to work)
  • Principal H-1B maintained his/her status for six (6) years by complying with all H-1B program guidelines