Can I get work authorization as the spouse of an H-1B visa holder? Can I work if my spouse has an H-1B visa and has applied for an immigrant visa?
The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. Spouses and children of H-1B visa holders may accompany their family member to the U.S. in H-4 status, however H-4 dependent spouses of H-1B visa holders usually cannot work in the United States. While some nonimmigrant visas, such as E and L visas, do permit a spouse to apply for work authorization, up until recently the H-1B did not permit work authorization for spouses. A change in the law though allows for some H-1B spouses to apply for work authorization as described below.
H-1B status is only valid for six years, and during this time period many H-1B visa holders apply to adjust status and obtain a green card through an employment-based immigration petition. Unfortunately, there are considerable delays to get a green card through employment based visas for individuals born in certain countries, namely China, India, and the Philippines. According to the October 2016 visa bulletin, wait times currently range between 4 to 11 years depending on the employment category and the country.
To enable H-1B principals to continue working in the U.S. until a green card is available, H-1B status can be extended in two situations:
- The H-1B principal is the beneficiary of an approved I-140 employment-based immigration petition;
- The H-1B principal had either a Permanent Labor Certification or an I-140 employment-based immigration petition filed on his or her behalf before the principal’s 6th year in H-1B status.
While these exceptions remedied the problems faced by H-1B principals subject to long wait times, until recently their spouses were still unable to work in their dependent H-4 status. In many instances, this inability to work caused great hardship to families by preventing the spouse from continuing his or her professional development, creating gaps of many years in work history, and forcing families to survive on just one income.
Recognizing that these issues discouraged skilled workers from applying for green cards, the USCIS implemented regulations in 2015 that allows some spouses in H-4 status to apply for work authorization. If you are in H-4 status and your H-1B spouse has an approved I-140 employment-based immigration petition, or if your H-1B spouse had his or her visa extended beyond 6 years for either of the reasons outlined above, you are eligible to apply for employment authorization.
Please note that employment authorization for H-4 spouses is not automatic and an application must be filed with the USCIS in order to obtain this benefit. If you are in H-4 status and have any questions about whether you are eligible for work authorization, please click here to schedule a consultation.
For more practical information and legal advice on E-2 and other visas, contact Scott Legal, P.C. Call 212-223-2964 or email firstname.lastname@example.org for a consultation.
Amir Rasoulpour, Esq. is an Associate Attorney at Scott Legal, P.C. He can be reached at 212-223-2964 or by email at email@example.com.
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