Late last year, I wrote on the controversial executive actions on immigration that President Obama announced in November. As I noted then, those executive actions include several initiatives that will make it easier for employers to hire and retain highly skilled foreign national workers.
One of these initiatives—finalizing new regulations to provide work authorization to the H-4 spouses of certain H-1B “specialty occupation” employees—has now been implemented. These new regulations become effective May 26, 2015 and will provide welcome relief to thousands of qualifying H-4 visa holders and their families. This, in turn, will benefit U.S. businesses that employ H-1B employees by providing an additional incentive for those employees to remain in the United States.
For the uninitiated—here are the players and current issues:
- H-1B workers are foreign nationals working in the U.S. on a nonimmigrant specialty occupation visa. H-1B workers can apply for a green card to become a permanent resident while in H-1B status. However, they typically must leave their work in the U.S. after six years unless they (1) obtain a green card or (2) have had their H-1B status extended based on reaching certain milestones in the green card process.
- H-4 spouses are foreign nationals married to H-1B workers and living in the U.S. They cannot currently work in the U.S. under any circumstances.
For a variety of reasons, H-1B workers are often unable to obtain their green cards—and must work in nonimmigrant status—for many years. The fact that the H-4 spouse cannot work and provide additional income sometimes forces the H-1B worker to give up the job in the U.S.
It appears that change is on the way. When the new regulations go into effect in late May, thousands of H-4 spouses will be able to apply for an Employment Authorization Document (EAD) that will authorize them to work while their spouse is in valid H-1B status.
Unfortunately, the new regulations will not apply to all H-4 spouses. For an H-4 spouse to qualify for work authorization, the H-1B employee must already have reached certain milestones in the green card process. Specifically, the H-1B worker must either (1) be the beneficiary of an already approved employment-based immigrant visa petition or (2) have been granted an H-1B extension because his or her immigrant visa petition or labor certification (PERM) application has been pending for at least 365 days. These specific conditions for H-4 work authorization essentially track the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), which allows H-1B workers meeting those conditions to work beyond the normal H-1B six-year maximum. In other words, if an H-1B employee can use AC21 to stay in the U.S. while seeking a green card, the new regulations should also allow his or her H-4 spouse to obtain work authorization.
The new regulations are expected to help thousands of foreign national workers. Because of the long waits for immigrant visas, particularly for Indian and Chinese nationals, it is estimated that over 170,000 H-4 spouses may be able to obtain work authorizations in the first year, with over 50,000 more being eligible annually in subsequent years.
This may not be the broad immigration reform that employers need, but it’s certainly a welcome development for those businesses that employ highly skilled H-1B foreign workers.