New rules to benefit the families of H-1B visa holders went into effect on May 26,, 2015. The Department of Homeland Security (“DHS”) granted certain spouses with H-4 visas the ability to seek employment authorization so they could work in the US. The purpose behind the new regulation is to help the US attract and retain highly skilled foreign workers and minimize the disruption to US businesses which results when H-1B nonimmigrants choose not to remain in the US and pursue lawful permanent resident status.
Prior to the May regulation, the families of employees with H-1B visas would get an H-4 visa, which did not allow them to work in the US. As a result, the family would have to rely on the H-1B nonimmigrant as sole support, a burden that would cause some workers to leave the US. It was especially burdensome to H-1B employees who have a long waiting period to get a green card as is the case with workers from countries with low annual quotas for green cards, such as India and China.
The regulation only applies to spouses of H-1B nonimmigrants, not other family members with H-4 visas. In addition the H-1B nonimmigrants must have already started the process of seeking employment-based lawful permanent resident status. Specifically, H-4 spouses are eligible if their spouses:
- Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Have been granted H-1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). AC21 permits H-1B workers seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.
In order to apply for work authorization, the H-4 spouse must file an I-765 form. http://www.uscis.gov/i-765
Spouses of L-1 and E-2 visa holders were already eligible to work in the US prior to the May 26th rule by filing for work authorization. L-1 visas apply to employees who are intracompany transfers. E-2 visas apply to treaty investors – individuals from certain treaty countries who are investing a substantial amount of capital in a US business. However, H-4 spouses did not have this right prior to the new rule.
Unfortunately, the new regulation has drawn unwanted attention from at least one group. Save Jobs USA, a group representing former Southern California Edison Co. computer workers, filed a lawsuit April 23rd challenging the rule stating the DHS does not have the authority to expand the H-1B and H-4 rules. The plaintiffs claim their jobs have been replaced by these foreign workers. On July 1, a D.C. federal court judge refused to throw out the case. However, the DHS and immigrant groups do not expect the group will prevail in its lawsuit.