On February 24, U.S. Citizenship and Immigration Services (USCIS) announced that it will start accepting applications for work authorization from certain spouses of H-1B visa holders beginning May 26, 2015. This regulatory change has gone through the normal rulemaking process and is not affected by the federal district court injunction issued last week blocking other administrative actions on immigration.

Who Can Apply for a Work Permit?

Any spouse applying for work authorization must be in H-4 status as the dependent of a principal H-1B visa holder who:

  • Is the principal beneficiary of an approved employment-based immigrant visa petition (Form I-140), or
  • Has received an extension of H-1B status beyond the six-year limit, based on an immigrant visa petition or PERM/labor certification filed at least 365 days before the expiration of the sixth year.

H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with the applicant’s passport, photos, evidence of the applicant’s H-4 status, evidence of the principal visa holder’s H-1B status, documentation of their marriage, documentation of the principal H-1B visa holder’s approved I-140 or approved one-year H-1B extension beyond the six-year limit, and the required $380 fee. Upon approval, the applicant will receive a Form I-766, Employment Authorization Document (EAD). Once the application is approved and the H-4 spouse receives the EAD, he or she may begin working in the United States for any employer.

Due to the immigrant visa backlogs, many H-1B visa holders and their spouses wait years, or even a decade or more, depending on nationality and visa category, to obtain permanent residence in the United States. During this time, H-4 dependent spouses are unable to work. USCIS estimates that as many as 55,000 applications for H-4 dependent spouse work permits may be received annually, which may alleviate the financial burdens on the families of skilled H-1B workers, facilitate their integration into American society, and promote economic growth and job creation.

How This Will Affect Employers

This regulation will provide a further incentive for employers to sponsor skilled H-1B employees for permanent residence (“green card”) in order to allow their spouses to obtain work authorization. This is particularly true for Chinese and Indian employees, who face long visa backlogs. Allowing spouses in H-4 status to work will encourage H-1B employees waiting in line for green cards to remain in the United States. H-4 visa holders are often skilled individuals themselves and may be a valuable addition to the workforce. We will provide an in-depth analysis of the new H-4 work authorization regulations in the near future.