Work Authorization for Certain H-4 Spouses: A positive step in foreign talent retention

Friday, July 17, 2015 - 11:42

Imagine your organization has made a job offer to a sought-after candidate for a senior-level position in your New York office. The candidate, a Russian citizen who would be entering the U.S. on an H-1B visa, has a second offer pending – this one for an equally senior-level position but located in the UK. After much deliberation, your offer is declined since the candidate’s spouse, who does not have an independent U.S. job offer, would not be able to work as a dependent spouse under the H-1B work visa. The British role beckons since the UK provides work authorization for foreign dependent spouses. This scenario has played out with increasing regularity in the world of global recruiting in recent years causing U.S. companies to frequently lose valuable talent. However, the new dependent spousal work authorization rule promises to provide some limited relief to this drain on recruitment efforts aimed at employing global talent in the U.S.

While comprehensive U.S. immigration reform has been on the forefront of debate for a long time, the issue of spousal work authorization has languished on the sidelines. It lacked the momentum to actually get change accomplished. As the law existed prior to May 26, 2015, dependent spouses of H-1B visa holders were not eligible to apply for work authorization on the basis of their marriage to the principal H-1B visa holder – an issue addressed in Work Authorization for Some Spouses of H-1B Workers? Eureka!, our Metropolitan Corporate Counsel column entry published in June 2014, when the proposal for change was still in its infancy. The prior work restrictions for H-4 spouses meant that often spouses would be forced to choose between working in a different country from their spouse or living in the U.S. unable to work while waiting to change status to an applicable – and available – work visa category. A number of H-4 spouses were thus forced to give up lucrative careers while accompanying their H-1B spouses, due to the restrictions imposed by the H-4 visa.

Now, with the spousal work authorization change effective, certain spouses of H-1B visa holders, known as H-4 dependent spouses, are eligible to apply and receive a USCIS employment authorization document (EAD). However, this change is by no means sweeping or an open-door policy for all spouses of H-1B visa holders. It is in fact restrictive – allowing only the spouses of H-1B holders who are in certain stages of the employment-based green card process to apply.

So how does a dependent spouse become eligible for work authorization? First, an applicant must 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 employment-based green card process and that the case has been pending for one year or more and the H-1B spouse has received a one-year extension of his or her status beyond the statutory six-year maximum based on the pending green card case. Then, if the spouse falls into either of these categories, they must either prove that they are in H-4 status at the time of filing an EAD application or make some affirmative action to obtain H-4 status.

Once the application for EAD is filed with the United States Citizenship and Immigration Services (USCIS), a dependent spouse will need to wait for several months before a decision is rendered on the application, and no work is permitted in the interim. Only upon receipt of the physical EAD card may the H-4 spouse begin work. On the positive side, an H-4 work-authorized spouse has no restrictions on employment and may work anywhere in any job (unlike the H-1B, who is restricted to the specific sponsoring employer and to the specific job and wage covered by the H-1B petition). The H-4 spouse may also choose to become a business owner. Additionally, H-4 work authorization is by no means a one-time opportunity. As long as the H-4 spouse continues to meet the above eligibility requirements, he/she will be eligible to apply for EAD extensions while the spouse’s green card case continues to be processed.

In terms of impact on U.S. employers, given that the rule is intended for H-1B employees in the green card process, U.S. employers can expect to see current and prospective H-1Bs pushing more aggressively to start the green card process, which will in turn result in employers incurring green card-related costs sooner. Current industry trends show that H-1B employers typically wait until somewhere near the mid-point (typically three years) of permissible H-1B stay in the U.S. to initiate the green card process. This practice is largely motivated by the employer's desire to evaluate the H-1B worker’s performance and commitment to the organization before investing resources in securing a green card. 

The new rule is a certainly a step forward in attracting and retaining skilled foreign talent in the U.S. and in making foreign assignment work options relatively comparable on a global scale. Unfortunately, to be truly competitive, the U.S. needs to go all the way and permit all spouses of H-1B professionals to request work authorization.

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 mpatrick@fragomen.com. Archana Iyer, associate, Sarah Wheeler, law clerk, and Nancy Morowitz, counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.