Work Permits for H-4 Spouses Face Uncertain Future

Based on current political talks, work permits (“EADs”) for H-4 visa holders may no longer be an option. The current law states that spouses of H-1B visa holders, also known as H-4 visa holders, may not apply for work authorization. The exception to this rule is that H-4 spouses may apply for work authorization if the H-1B visa holder has surpassed the second step in the green card process, the I-140 phase, and now holds an approved I-140. Under the existing policy, the approved I-140 acts as the golden ticket for families who want to move from a single-income home to a dual-income home. It is a highly motivating factor for H-1B visa holders to request that their employers sponsor them for a green card sooner rather than later.

On Thursday, January 18, 2018, lobbyists of U.S. technology trade groups met with the Senate Judiciary Committee to demand the retention of work authorization for spouses of H-1B visa holders. In the meeting with the Senate Judiciary Committee, the technology trade groups organized by the Information Technology Industry Council, which includes Apple Inc, Amazon.com Inc, Facebook Inc, Alphabet Inc’s Google, and Microsoft Corp., expressed their concern that vital IT talent will not be incentivized to move to the U.S. The groups believe that families that prioritize both spouses’ abilities to pursue a career will be less inclined to move to the U.S. in order to fill long-standing vacant positions. Specifically, the groups noted that major Western technology competitors such as Canada and Australia both allow visa-holding spouses to work.

If this policy changes, women with a desire to work will be the most affected. In 2016, approximately 42,000 H-4 spouses present in the U.S. were granted work authorization. The USCIS estimates that that number grew to 48,000 in 2017. Although the USCIS does not release H-1B statistics involving gender, 13% of the H-1B holders in our practice are women. 87% are men. Of that 87%, 67% of male H-1B visa holders are married to women holding H-4 visas. In 2016, the US Office for Immigration Statistics estimated that 90% of H-4 visa holders are women. In our practice, 100% of H-4 visa holders are women, and are professionals in their field, often holding bachelor or master’s degrees in areas such as law, engineering, health & nutrition, and business. If we apply those statistics to the USCIS figures, then between 43,200 and 48,000 women in the U.S. with the desire to work will be prohibited from holding a job in 2018.

As the requisite comment period continues regarding this potential policy change, we are recommending that our clients who are H-4 visa holders file their initial work authorization application or renewal application as soon as lawfully possible.

Our firm will continue to follow this development closely. If you would like to be included on future updates, subscribe to our firm’s updates by entering your email address on the right-hand panel.

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Victoria Gentry is an associate attorney with The Immigration Group, P.C.  practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.

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