Work Authorization for H-4 Visa Holders

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.

AAO Precedent Decision on P-3 Visas

The Administrative Appeals of Office (AAO) of USCIS has just issued a new, precedent decision on P-3 Nonimmigrant Visa Petitions, examining for the first time what the term "culturally unique" means.  P-3 status may be granted to nonimmigrant artists or entertainers, either individually or as a group, who are coming to the United States to develop, interpret, represent, coach, or teach a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation.  The event the artist or entertainer is participating in must further the understanding or development of his or her art form, and the performance must be "culturally unique." 

In this case, the Skirball Cultural Center, a museum and cultural center, petitioned to have the Orquestra Kef classified as P-3 nonimmigrants for a period of six weeks.  According to the decision, the Orquestra Kef is an ensemble of seven musicians from Argentina "whose music blends klezmer (Jewish music of Eastern Europe) with [L]atin and South American influences."  Initially, USCIS denied their petition, finding that the Skirball Cultural Center failed to establish that the performance would be culturally unique, because it was a "hybrid or fusion style of music" which "cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."  Because it was a complicated case, USCIS certified its decision to the AAO. 

The AAO found that the P-3 classification can apply to artists and entertainers "whose unique artistic expression crosses regional, ethic, or other boundaries," and that "the idea of 'culture' is not static and must allow for adaptation or transformation over time and across geographic boundaries."  The AAO examined the documents that the petitioner submitted to show that the performance would be culturally unique, including three letters from experts in music, two newspaper articles written about the Orquestra Kef, and a review of the group's 2004 alburm.  The AAO found that "the modern South American klezmer music performed by the beneficiary group is representative of the Jewish culture of the beneficiaries' home country of Argentina," and that "the group's musical performance falls within the regulatory definition of culturally unique."  Because they found that the performance would be culturally unique, the AAO withrew the decision denying the petition, and approved the petition. 

The AAO's decision was the right one, and hopefully will allow more unique and interesting artists and entertainers to perform in the United States.