Rosie-with-H-4-EAD

U.S. Citizenship and Immigration Services (USCIS) has published a final rule allowing certain H-4 spouses of H-1B temporary work visa holders to apply for an employment authorization document (EAD) beginning May 26, 2015. To minimize delays, eligible H-4 spouses should contact our law firm now to begin preparing the required application and supporting evidence.

Background

U.S. businesses use the H-1B visa to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  H-1B workers’ spouses and children are admitted to the U.S. with H-4 visas. Normally, an H-1B can work in the U.S. for a maximum of 6 years, although certain exceptions apply.

Under prior regulations, USCIS did not extend employment authorization to H-4 spouses. But a “We the People” online petition took up the cause of H-4 spouses in 2011. The final rule reflects some of the themes raised in that petition. USCIS states that issuing work authorization to some H-4 spouses will:

  • reduce the economic burdens and personal stresses that H–1B nonimmigrants and their families may experience during the transition from nonimmigrant to LPR status while, at the same time, facilitating their integration into American society.
  • support the goals of attracting and retaining highly skilled foreign workers.
  • ameliorate certain disincentives for talented H–1B nonimmigrants to
    permanently remain in the United States and continue contributing to the U.S. economy as lawful permanent residents. This is an important goal considering the contributions such individuals make to entrepreneurship and research and development, which are highly correlated with overall economic growth and job creation; and
  • bring U.S. immigration policies concerning this class of highly skilled
    workers more in line with those of other countries that are also competing to attract and retain similar highly skilled workers.

The final rule focuses on granting work authorization to H-4 spouses of H-1B workers who are seeking LPR status. The process of applying for lawful permanent resident status (i.e., LPR status, also known as a “green card”) in the U.S. can be prolonged, taking years (up to 10 years in the case of Chinese and Indians in the EB-3 preference category). The most common process is that

(a) the employer obtains a labor certification from the U.S. Department of Labor showing that no qualified U.S. worker has applied for the position offered to the foreign national,
(b) the employer then files the Form I-140 with U.S. Citizenship and Immigration Services,
(c) the worker is put on a waiting list, and
(d) the foreign national files a Form I-485, Application to Adjust Status.

Essentially, the H-4 work authorization proposal provides a bit of relief to business and families stuck in the long green card process. The length of the waiting list is an intolerable symbol of our broken immigration system.

U.S. businesses employing H–1B nonimmigrants suffer disruptions when such workers are required to leave the United States at the termination of their H–1B status as a result of these delays. To ameliorate those disruptions, Congress previously enacted provisions in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) that allow for the extension of H–1B status past the sixth year for workers who are the beneficiaries of certain pending or approved employment-based immigrant visa petitions or labor certification applications.

The final rule is focused on essentially the same families meant to benefit from AC21. “These individuals are American families in waiting,” as U.S. Commerce Secretary Penny Pritzker has said.

Which H-4 Spouses Are Eligible for Employment Authorization?

An H–4 spouse of an H–1B worker may be eligible for an EAD only if:

  1. the H–1B worker is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  2. the H–1B worker’s period of stay in H–1B status is authorized under sections 106(a) and (b) of the American Competitiveness in the
    Twenty-first Century Act of 2000 (AC21). Such an extension can be granted if–prior to reaching the end of the 6th year in H-1B status–365 days have passed since the filing of a labor certification application or of a Form I-140 but the worker is still waiting for permanent residence (i.e., the labor certification application has not been withdrawn, denied, or revoked).

To qualify for an EAD, the H-4 spouse must be maintaining lawful status, and that in turn requires that the H-1B worker be in lawful status. For example, engaging in unlawful employment would be a violation of either’s status.

What Is the Procedure to Apply for an EAD?

Beginning May 26, 2015, the H-4 spouse may file a Form I-765, Application for Employment Authorization, with the filing fee of $380 and supporting documents.

The application may be filed together with a Form I-539, Application to Extend/Change Nonimmigrant Status, as well as the H-1B worker’s Form I-129, Petition for Nonimmigrant Worker. It may be filed up to six months in advance of the requested start date.

For now, a paper I-765 must be filed. USCIS will notify the public in the future when it is prepared to begin accepting electronic filings by H-4 spouses.

Currently, USCIS will not allow premium processing of I-765s for H-4s (i.e., 15-day processing for an additional fee), although an underlying Form I-539 seeking extension or change to H-4 status may be premium processed if accompanying a Form I-129 for the H-1B worker seeking premium processing.

An H-4 spouse’s work is not authorized until the EAD is actually issued.

What Supporting Documents Are Required?

USCIS should publish updated Form I-765 directions before H-4 spouses become eligible to apply for work authorization on May 26, 2015. It’s anticipated that the instructions will require the following supporting documents along with the Form I-765 and filing fee:

  1. Evidence the H-1B worker is maintaining lawful nonimmigrant status. for example, passport, Form I-94, most recent W-2 and paystub.
  2. Evidence the H-1B worker is seeking LPR status. Specifically: (a) evidence that the H-1B worker is the beneficiary of an approved Form I-140; or (b) evidence the H-1B worker has been granted an extension of status (or will be granted an extension of status based on a Form I-129, Petition for Nonimmigrant Worker, filed concurrently with the H-4 spouse’s Form I-765) beyond 6 years on the basis evidence that a Labor Certification Application or Form I-140 has been pending for more than 365 days.
  3. Evidence the applicant is currently in H-4 status (e.g., Form I-94) or an accompanying Form I-539 with $290 filing fee applying for change to H-4 status.
  4. Proof of marriage to the H-1B worker.
  5. It may be wise to submit evidence of the validity of the marriage (e.g., evidence of joint ownership of assets, joint filing of tax returns, etc.) because if the adjudicating officer suspects marriage fraud, the case may be referred to a local fraud unit for further investigation.

How Long Will the EAD Be Valid?

USCIS generally will issue the employment authorization document (EAD) valid for the same period as the spouse’s H-4 status, which may be as long as three years, but must not exceed the H-1B worker’s approved period of stay. Of particular note:

  • An H-1B worker seeking an extension of status on the basis that 365 days or more have passed since filing of a labor certification or Form I-140 is eligible is eligible for an extension in just 1-year increments. The H-4 spouse’s EAD will thus be limited.
  • An H-1B worker who is the beneficiary of an approved Form I-140 filed in the employment-based 1st, 2nd, or 3rd preference categories and would be eligible for lawful permanent resident status but for the fact that the U.S. Department of State Visa Bulletin shows they are affected by a per-country waiting list for an immigrant visa number may be granted an extension of H-1B status for a period of up to 3 years. Currently, certain Chinese and Indian H-1B workers are eligible for H-1B extensions on this basis. The H-4 spouse’s EAD may be granted for the same period.

If USCIS Delays Adjudication, Is the H-4 Spouse Eligible for an Interim EAD?

Regulations currently allow USCIS to issue an “interim” EAD if a Form I-765 isn’t adjudicated within 90 days of filing. For purposes of H-4 EADs, that 90-day clock is not triggered under USCIS has already made a determination to extend the H-4 spouse’s status (which often first requires a determination to extend the H-1B worker’s status).

Can the EAD Be Revoked?

If either the H-1B worker or the H-4 spouse violates the terms of their nonimmigrant status, USCIS may seek to revoke the EAD.

Why the Final Rule Is Still Too Narrow

The Feb. 25, 2015, final rule adopts without significant changes a USCIS proposed rule from May 12, 2014. Nearly 13,000 people submitted comments during the proposed rule’s 30-day comment period, many arguing that the final rule should cover all H-4 spouses, but as discussed above the final rule covers just certain H-4 spouses of H-1B nonimmigrants who are seeking lawful permanent resident (LPR) status.

The regulatory goals claimed by USCIS (attracting and retaining highly skilled immigrants; attracting new businesses and new investment to the U.S.; giving the U.S. an edge in competing with other countries for talent; and ameliorating personal and economic hardship for the families of H-1B workers) would be better served by authorizing all H-4 spouses of H-1Bs to work. Mostly wives, their professional and technical skills can grow scale if relegated to involuntary housewife status. Their families’ bank balances are impacted by having only one breadwinner. They can be lonely and depressed as strangers in a new country with no access to the self-esteem of work or the social outlet provided by a workplace. They are ineligible for social security numbers, unable to open bank accounts, and in some states ineligible for driver’s licenses. The power imbalance between working husband and stay-at-home wife can stress the relationship. In some cases, this leads to domestic violence or suicidal thoughts.

There’s no straight path for H-4 spouses to apply for H-1B work visas. It’s difficult to find an employer because of the high government filing fees the employer must pay to sponsor an H-1B worker. And even after the employer offers the H-4 spouse a job, hires an immigration attorney to file the petition, and writes the check for the filing fees, still approval of the petition is a crap shoot. Due to the annual quota, in years like 2014, most H-1B petitions are rejected in a lottery process.

Doug Stump, President of the American Immigration Lawyers Association, was right when he characterized the USCIS rule as an “important” step but too narrow in focus: “only the spouses of H-1B workers who have passed some of the hurdles to receive an employer-sponsored green card will be eligible. That means a relatively narrow group of people will be helped by this change, while many H-1B visa holders’ spouses will remain stuck in neutral, unable to contribute to their families or our country’s economy.”

Moreover, if USCIS is serious about winning the international talent war, the U.S. must match other developed countries that routinely authorize foreign workers’ trailing spouses to work.  “Allowing H-1B spouses to work would be an important change. Sometimes people aren’t willing to come to the U.S. if their spouse can’t work,” says Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. Others “tire of waiting for green cards [without the ability to work] and leave the country to work for our competition, as U.S. Commerce Secretary Penny Pritzker has said. The spouses of an H-1B workers shouldn’t be forced to choose between having a career in her home country and being unemployed but together with her family in the U.S. The U.S., by statute, already provides work authorization to the trailing spouses of L-1 intracompany transfer visa holders and E-1/E-2 treaty traders and investors. And USCIS has promulgated regulations to grant work authorization to the spouses of J-1 exchange visitors.

In deciding the scope of H-4s to be granted employment authorization, USCIS isn’t limited Congress’ intent in enacting AC21. Of course, if Congress had intended that AC21 grant EADs to certain H-4s, Congress would have said so. It may be true that H-4s who have been out of work for 6 years but are seeking LPR status have the most sympathetic case for EAD eligibility. But the policy reasons reviewed above show that all H-4 spouses of H-1Bs should be authorized to work, not sidelined for 6 years. That would better implement the Immigration and Nationality Act as a whole.

It should also be noted that USCIS found that the final rule will not negatively impact U.S. workers. Critics, such as U.S. Senator Jeff Sessions (R-AL), say that H-4 spouses shouldn’t be allowed to compete for jobs with Americans. In essence, the argument is that a couple shouldn’t get a “two-for-one” when an H-1B visa is granted. But the final rule asserts that allowing H-4 spouses to work would have a “negligible impact on the U.S. labor market given the size of the U.S. civilian work force” of over 155 million. Further, it does the American public no good to force H-4 spouses sit idle at home. The public is better served by unchaining their productivity by employment or starting businesses, and allowing them to spend their income in the U.S. economy. That would better serve USCIS’ goal of  “attract new businesses and new investment to the U.S.”

The final rule affirms that USCIS “may consider expanding H-4 employment eligibility in the future.” That’s a step worth taking.

Learn more about Work Authorization for H-4 Spouses

This article was co-authored by Jacqueline Lentini McCullough and Gary Chodorow.

Ms. Lentini handles all types of employment-based immigration case management, including the following:   H-1B (including  AC21), Labor Certification (PERM), L-1A, L-1B, L-1 Blanket, E-1/E-2, TN, B-1, F-1, J-1 students, researchers and trainees, and I-140 (EB-1, EB-1a, EB-2, and EB-3).  Ms. Lentini also counsels clients on consular processing and client adjustment interviews, and files adjustment of status applications, including advance parole and employment authorization. She further assists individuals with naturalization applications, and employers with I-9 and E-Verify compliance issues. Her clients tend to be small to mid-sized companies employing multiple foreign nationals across a wide range of industries, such as manufacturing, IT and universities.

Mr. Chodorow (乔德睿) is an immigration lawyer who has helped businesses, investors, families, and others with U.S. and China visas, permanent residence, and citizenship matters for more than 20 years. Gary also is a founding member of the American Immigration Lawyers Association’s Asia-Pacific chapter, co-chair of the American Chamber of Commerce-China’s visa committee, and adjunct professor of law at Chicago-Kent School of Law.

For more information regarding this topic and employment immigration in general, please contact us or schedule a consultation.