It is ironic that while dependent spouses of L-1 visa holders are allowed to work in the United States from the initial approval of the spouse’s L-1 by filing necessary paper work with the USCIS, dependent spouses of H-1B workers were not allowed to work in the U.S. even though they may be well-educated and high tech professionals. If one gets married to a H-1B worker and comes to the U.S., he or she will be surprised to find that the H4 dependent spouse is not allowed to work even though he or she may be a well-educated and skilled worker. Besides, if the H4 spouse tries to gain employment through the application of H1B process, there are many hurdles of annual H1B quotas, uncertainty of getting picked up in the lottery and finding a suitable employer and employment. Some employers may not be interested to go the extra mile to face the expenses and hassle of filing H1B visas. This inability to work for the dependent spouses of H1B workers was also a leading cause for the abuse of spouses who could not work and were forced to stay home.
Often, it has been seen that the H1B workers threaten their spouses to obey them and mistreat them. H4 spouses live in constant fear of deportation if the H1B spouse files for divorce or does not file for the extension of H4 visa for the spouse. There have been instances where the H4 spouses have been tortured mentally and physically at the hands of H1B spouses because H4 spouses cannot work, cannot get social security number and cannot even open a bank account of their own.
Allowing H4 workers to work in the U.S will help reduce the stress on the family, develop and grow the economy as more workers join the work force and contribute to society, which in turn will allow more qualified educated workers to the U.S. Leon Rodrigues goes on to state: “Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”
The new rules do not allow blanket permission to all H4 spouses in the U.S. to work. It is meant for a select few. It allows only spouses of certain categories to apply for the permission to work. To qualify to apply for employment authorization, the H-1B spouse must be the beneficiary of an approved I-140 or else the H-1B spouse should have been granted H1B status beyond the six-year limit. What it means is that either the H-1B spouse has been in the U.S under an approved H1B visa for more than six years or has been the beneficiary of an approved green card petition, I-140, Immigrant Petition for Alien Worker filed by the U. S. petitioning employer. H1B is a temporary visa which can be granted for a maximum period of up to 6 years. To stay beyond the allowed period of 6 years on H1B, the employer must file a petition for permanent residency for the employee on H1B visa. There are strict procedural requirements for filing such petition and the petitioning employer has to process this. Spouses of only those H1B employees who have fulfilled the above requirements or meet these requirements are eligible to take advantage of this new law.
To receive the work authorization, the eligible H4 spouses should apply to the United States Citizenship & Immigration Services using form I-765, Application for Employment Authorization on or after May 26, 2015, and pay a filing fee of $380 to get Employment Authorization Card. The H4 spouse then can work in the U.S only after receiving the Employment Authorization Card for form I-766. H4 spouse should note that they should not file this application before May 26, 2015 as it may be rejected. Currently, the announcement permits a quota of 179,600 for this year to get employment authorization and a quota of 55,000 annually thereafter.
It would have been better if the rules permitted new non-immigrants coming under H4 visa to work in the U.S. However, this is a breakthrough and a step in the right direction. Hopefully, the administration will further relax the rules and permit the new H4 spouses coming to the U.S to fulfill their dreams get an opportunity to work in the U.S and contribute to the U.S economy at the same time.
Mahesh Bajoria is an attorney practicing law at Fremont, California. He can be reached at 510-791-9911 or by email: firstname.lastname@example.org.