We are very fortunate to represent many employers who sponsor foreign nationals as H-1B nonimmigrant workers. One of the biggest challenges in working with H-1B nonimmigrant workers is explaining that their dependent spouse cannot also work in the United States. This is about to change for some.
As a reminder, an H-1B nonimmigrant worker is someone who works in a “specialty occupation,” which is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge. Examples of H-1B specialty occupations are scientists, engineers, or computer programmers. H-1B nonimmigrant workers are admitted for an initial three year period, and their employers can extend that up to a maximum limit of six years.
Some H-1B nonimmigrant workers can actually extend their H-1B nonimmigrant status beyond the six years. For example, if their employer (or a prospective employer) filed a permanent residence application prior to the end of their fifth year of H-1B eligibility. Another example would be if the H-1B worker has a Labor Certification Application (commonly known as a PERM application) approved by the U.S. Department of Labor and an I-140, Immigrant Petition for Alien Worker, approved by U.S. Citizenship and Immigration Services.
Under current law, H-4 dependent spouses cannot apply for work authorization (unlike spouses in some other nonimmigrant classifications, e.g., L-1 dependent spouses). That is about to change.
On May 6, 2014, the Department of Homeland Security announced the publication of a propose rule designed to attract and retain highly skilled workers. The rule would allow spouses of certain H-1B nonimmigrant workers to request employment authorization if their H-1B spouse is currently pursuing permanent residence through employment-based sponsorship.
According to this proposed rule, H-4 dependent spouses can apply for work authorization if the H-1B spouse (a) is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker or (b) has been granted an extension of his or her authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B nonimmigrant workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit (in the situations described above).
Of course, this rule is a welcome change. And while this proposed rule may assist an estimated 97,000 H-4 dependent spouses who will now become eligible to apply for employment authorization, the rule does not assist H-4 dependent spouses whose H-1B spouses are not in the employment-based permanent residence process. By contrast, spouses of L-1 intracompany transferees are eligible to apply for work authorization, without the requirement of having to be in the permanent residence process.
This is not a perfect solution, but it’s a pretty big deal, nevertheless. I cannot tell you how often I have to break the news to an H-1B nonimmigrant worker that their trailing spouse can come to the United States but cannot work him or herself. There are organizations that work with trailing spouses (e.g., Tech Valley Connect works with trailing spouses to assist them with their professional development and assimilation into their new community), but a good portion of their missions are assisting trailing spouses with their professional development. Given the cap limitations associated with the H-1B program, what good does it do to work on professional development when employers are co constrained in terms of their ability to participate in the H-1B program?
From an immigration reform perspective, this, along with several other happenings recently, is interesting. Republicans have repeatedly said that President Obama cannot be trusted to enforce our laws. Here, we have an instance of legislating through regulatory change. This comes on the heals of President Obama directing DHS Secretary Jeh Johnson to conduct a review of immigration policy, including weighing an administrative move to curtail deportations. We shall see if there is any fall out of this in Congress. For now, a little progress.