In a widely anticipated move, the Department of Homeland Security has announced plans to allow the dependent spouses of certain H-1B workers to seek their own permission to work in the United States. The proposal is part of an Obama administration initiative to attract and retain highly skilled foreign nationals outside of the stalled immigration reform process.
DHS’s proposal is welcome news for U.S. employers with a talented H-1B workforce. H-1B foreign nationals make up a significant portion of the foreign skilled-worker population in the United States and make significant contributions to the U.S. economy. Nevertheless, H-1Bs, and in particular those who want to pursue the lengthy U.S. permanent residence process, often face a significant familial hardship: their accompanying spouses in H-4 visa status are not authorized to work unless they obtain their own employer sponsorship. With permanent residence waiting periods of 10 years or more for some foreign nationals, limits on a spouse’s ability to work are simply untenable for many.
The lack of employment options for the H-4 spouses of H-1B workers has grown into a significant competitive disadvantage. With more countries competing for skilled foreign workers, sought-after candidates are shrewdly weighing the relative benefits of the immigration systems of the United States and its competitors. One important factor for many is whether their dependents will be able to work incident to their dependent visa status.
The United States has lagged behind other nationals in offering spousal work authorization. Though foreign nationals in E and L nonimmigrant status benefit from provisions that allow their spouses to work, such permissions do not extend to other temporary worker categories like the H-1B. This is in stark contrast to the benefits accorded highly skilled foreign nationals in competing nations, including Australia, Canada and the UK.
Spousal employment authorization for H-4s was included in the Senate and House immigration reform bills that were introduced, and, in the case of the Senate bill, passed last year. But with a gridlocked Congress, the Obama administration has been looking for non-legislative approaches to improve our immigration system and has found a popular topic in H-4 work authorization.
DHS’s proposal would give some – but by no means all – spouses of H-1B workers the ability to seek work authorization. When the rule takes effect, an H-4 nonimmigrant would be able to apply for employment authorization if his or her H-1B spouse has a long-pending employment-based green card case. An H-4 would need to demonstrate that the H-1B spouse is the beneficiary of an approved petition to classify him or her in one of the employment-based green card categories, or that the H-1B’s employer has begun the permanent residence sponsorship process and that the case has been pending for one year or more.
Eligible H-4s would not receive employment authorization automatically. To obtain permission to work, an H-4 would be required to file an application with U.S. Citizenship and Immigration Services (USCIS), along with evidence of his or her spouse’s status and qualifying permanent residence case. If the application were approved, the H-4 spouse would receive a USCIS employment authorization document valid for up to two years. The document would serve as evidence of eligibility to work lawfully in the United States and could be used for employment with any U.S. employer.
Why doesn’t the proposal cover all H-4s, regardless of whether their spouses are being sponsored for permanent residence? The administration is taking a cautious approach, perhaps mindful of the accusations of immigration opponents that the President might use executive powers to force reform. The rule suggests, however, that DHS may consider broader H-4 employment authorization at some point in the future.
H-4 employment authorization will not become available until DHS’s proposal clears the federal review and approval process. According to federal officials, that could occur by the end of this year. With the immigration reform process apparently stalled for at least another year, the modest benefits of the H-4 proposal, though welcome, are likely to be the best that employers of skilled foreign workers can expect in the way of reforms in the near term.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at firstname.lastname@example.org. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.