H-1B Spouses and Dependents

Reminder:  Effective today, May 26, 2015, the Immigration Service will accept applications for employment authorization from “certain H-4 dependent spouses of H-1B nonimmigrants”. (Employment Authorization for Certain H-4 Dependent Spouses Web page).

An H-4 spouse may only apply for an EAD (employment authorization document) if the H-4’s H-1B spouse is pursuing US permanent residence.  More specifically, the H-4 spouse may not file an EAD application unless the H-1B spouse:

  • Is the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker, OR
  • Has H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (as amended by AC21).

Of course, H-4 status isn’t the only status that an H-1B spouse may hold.  USCIS had previously announced that where a non-H-4 spouse applies for H-4 status, it will first change the status of the qualifying spouse to H-4 and then adjudicate the application for employment authorization. This will add another step to the process and take more time.

Please see my prior post on this topic, “H-4 EAD Applications Accepted Beginning May 26, 2015: Are you that “certain spouse”?” for more information.

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Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

Are you that “certain someone”?  That “certain spouse” of an H-1B worker who will be eligible for H-4 work authorization?  Not sure?  Here’s the scoop.

At long last, on Wednesday, February 25, 2015, the US Department of Homeland Security (DHS) published a Federal Register Notice captioned, “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule”.   Per the much-awaited Notice, on May 26, 2015 (NOT earlier), USCIS will begin accepting applications from eligible applicants in H-4 status, but H-4 work authorization will not be available to all who hold H-4 status.  The chosen few, those “certain spouses” who will be eligible for H-4 work authorization include:

  • An H-4 spouse of an H-1B worker with an approved I-140, or
  • An H-4 spouse of an H-1B worker who has been granted a 7+ year extension of H-1B time pursuant to AC21 Sections 106(a) and (b).  (Note that an H-4 spouse of an H-1B worker granted a 7+ year extension under AC21 Section 104(c) would be covered under the first bullet point.)

So, not all H-4 dependent spouses will qualify to apply for an H-4 EAD (employment authorization document).  H-4 children are also ineligible.

An H-1B worker who is running out of H-1B time may want to consider whether it makes sense to change to H-4 status and seek work authorization—that is, if married to an H-1B worker who would enable the work authorization criteria to be met. Fortunately, there is a provision for concurrent filing of the H-4 application and the EAD application.

Typically, it takes about 90 days from the date of USCIS receipt of an EAD application for the EAD card to be issued.  It’s not clear whether it will take longer given that there is likely to be a very large number of filings seeking H-4 work authorization.

Careful consideration and strategizing must be undertaken to determine eligibility, the best course of action, and timing.  Please feel free to contact us if you need assistance.

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Ms. Wadhwani is a Partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

H-1B cap season is upon us, but will the H-1B cap be increased?  You may have heard of the “I-Squared Act of 2015” (aka the “Immigration Innovation Act of 2015” or S. 153), introduced in the Senate in mid-January.  Like the President’s Immigration Executive Action, the I-Squared Act contains a variety of proposals meant to improve the country’s immigration system.  Not all of the provisions relate to H-1B workers, but that’s what I’ll address here.

The Bill begins with a section captioned, “Market-Based H-1B Visa Limits”.   This Section describes a system which would provide for increased H-1B numbers depending on demand.  The H-1B cap would increase from the current 65,000 (+20,000) to 115,000 (but not more than 195,000).  Demand would be assessed on a rolling basis beginning 46 days after the first date when H-1B filings are permitted, then again on the 61st day and so on.  That should certainly alleviate the distress of cap-subject employers…if the Bill were to ultimately become law.

Further, the Bill proposes a 60-day grace period for the H-1B worker when the employment relationship ends (whether voluntarily or involuntarily before the ending validity date of the H-1B petition approval).

Of note, the Bill also calls for work authorization for the spouse of an H-1B worker.  This raises another question:  When will we hear more regarding the H-4 work authorization that is already under consideration?

Will the Senate Bill become law?  That seems highly unlikely, and particularly not in time for this year’s H-1B cap season.  So for now, cap-subject employers intending to petition for H-1B status for cap-subject foreign workers should be prepared as usual.

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Ms. Wadhwani is a partner in the Pittsburgh office of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com

If you’re anxiously awaiting news regarding work authorization for certain H-4 nonimmigrants, here’s the latest:

  • The period for submitting comments regarding the proposed rule closed on July 11, 2014.
  • In an open call held on August 14, 2014, USCIS Director León Rodríguez stated that the Service is in the process of considering the comments received.  He acknowledged the importance of the proposed rule to families and stakeholders and said that the Service was working as quickly as possible to conduct its review of the comments.

That’s all we know for now.  Hopefully there will be more news soon, but no time-frame was provided at this point.

For background on this topic, please refer to my May 16, 2014, Immigration View Blog Post captioned, “H-4 Work Authorization?  Not for everyone.”  You may also want to view the Federal Register Proposed Rule that was published on May 12, 2014.

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Ms. Wadhwani is a partner in the Immigration Group of Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.