The Department of Homeland Security recently announced several "DHS Reforms to Attract and Retain Highly Skilled Immigrants." One of those reforms included a change to current regulations to "allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated." Under the current rule, spouses of H-1B visa holders may be granted an H-4 visa, allowing them to accompany their spouse to the United States, but cannot obtain employment authorization.
This proposed change would certainly be a step forward in policy, and is long overdue. Spouses accompanying visa holders in other non-immigrant visa classifications, such as Ls, are entitled to employment authorization. H-4 spouses may have an economic necessity to work. They may wish to avoid a gap in their employment history that would make it more difficult to later re-enter the workforce. They may wish to work for career advancement, or personal fulfillment. The may simply want to meet new people and experience another aspect of American culture. Their lack of ability to work forces them to be economically dependent on their spouse. Estimates suggest that H-1B holders are largely male, meaning that this prohibition disproportionately affects women.
However, the proposed rule is extremely limited in scope. Not all H-4 spouses are eligible for work authorization, rather, only those "H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident (LPR) status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)."
DHS's stated reason for this proposed change is to "help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy." Allowing all H-4 spouses to obtain employment authorization, rather than the limited numbers affected by this rule, would be true reform and may actually accomplish DHS's goal.
You can sign a petition to President Obama to allow H-4 visa holders to obtain employment authorization here, and check out the Official White House response on the petition here.
Julie Kruger is an Attorney and Partner at Richards & Kruger, with a practice limited to Immigration Law. She is admitted to practice in New York State, and is a member of the American Immigration Lawyers Association, New York State Bar Association, and Erie County Bar Association.
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