The Department of Homeland Security has put in place certain regulations which have changed how H-4 spouses can obtain employment authorization. If you are at all familiar with immigration law in the U.S. today, then you know that, as with most laws, immigration law can change over time. While there are laws in place that allow noncitizens to legally come to, and even work in, the U.S., these protections are not extended to all peoples. Even if an individual is admitted into the U.S., they are not guaranteed working rights. One example of such people includes spouses of certain classes of noncitizen. While allowed to legally live in the U.S., they generally do not have working rights, but as with most rules, there are exceptions.

Changes affecting how H-4 Spouses can obtain employment authorization

United States Citizenship and Immigration Services (USCIS) announced that, the Department of Homeland Security (DHS) would be extending eligibility for employment authorization to certain dependent spouses of H-1B nonimmigrants. Under this new rule, certain H-4 Spouses can obtain employment authorization by filing Form I-765, which is an application for employment authorization, with USCIS.  Not all H-4 dependent spouses are eligible. Eligible Spouses are those who are either spouses of H-1B non immigrants awaiting permanent residency or who have extended H-1B status beyond six years based on an Act of Congress known as the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”)

While this does allow some spouses of H-1B visa holders to apply for work in the U.S., it does not yet extend to any other dependent of an H-1B nonimmigrant. In order to better understand the effect of these changes, it is best to understand the involved categories of visa.

H-1B Visa

U.S. immigration law recognizes that the intent and purpose of immigrants varies greatly. While there are other types of visa available to persons who wish to work or study in the U.S., the H-1B visa is available only to persons who work in “specialty occupations.” This generally includes occupations that require higher education degrees, but it is possible to obtain an H-1B visa without such a degree, as long as the occupation is one that is so complex or unique that it can only be performed by someone with a bachelor’s degree in a related field. That being said, it is also necessary for the individual to have a pre-existing business relationship or job opportunity in order to claim an H-1B visa. H-1B visa, with some exceptions, are issued for a period of up to six years.

H-4 Visa

While U.S. immigration law provides for these workers, it also recognizes that it is likely that they may have a spouse or children that he/she would need to provide for. Family members of certain H visa holders (H-1A, H-1B, H-2A, H-2B, and H3), which include spouses and dependent children under the age of 21, are able to lawfully stay in the U.S. with an H-4 visa. Even though H-4 nonimmigrants are allowed to lawfully stay in the U.S., the duration of their stay is limited to the length of the primary H visa holder.

While obtaining an H-4 visa is open to spouses or dependents of certain H visa holders, it is important to remember that the changes in the law only apply to some dependent spouses of H-1B nonimmigrants.

Contact an Immigration Law Attorney

Because immigration law can be complex, and sometimes frustrating, working with an immigration attorney is essential when dealing with any immigration issues or concerns you might have. If you want to know more about how H-4 spouses can obtain employment authorization or if you have other Immigration concerns or questions, contact a dedicated, experienced attorney at The Law Office of Natalie D. Hall, PA, for a case evaluation.