It was long the case that H-4 Visa holders were not eligible to work in the United States. H-4 Visa holders are the spouses and minor (unmarried) children of H-1B Visas holders.
In May 2015 the Department of Homeland Security announced that certain H-4 Spouses would be eligible to work. Specifically, under the 2015 regulation, if one’s H-1B Spouse holds an I-140 Petition Approval in hand, the H-4 Spouse then became eligible to apply for employment authorization. The right to work is not automatic. The H-4 Spouse must apply for and be granted employment authorization – and must timely apply for extensions of that authorization.
The H-1B visa is used by employers seeking to employ a foreign national in a job that qualifies as a “specialty occupation” – a job which typically requires at least a Bachelor’s Degree in a field a study related to the job itself. An H-1B Visa holder may hold H-1B status for a maximum of six years. If, however, the H-1B employer sponsors the H-1B employee for permanent residency (greencard), it is possible under very specific circumstances, for the H-1B holder to remain in H-1B status beyond the six years while he or she is waiting for the permanent residency process to be completed – which for some could take 10+ years. The previously mentioned I-140 Petition, which is the trigger for the H-4 employment authorization, is the second of the three-stage permanent residency process.
Following the implementation of the H-4 work regulation, a group called Save Jobs USA filed a lawsuit in the United States District Court in Washington DC alleging that the government, then led by President Obama, lacked authorization to issue employment authorization to H-4 visa holders. Keep in mind that this grant of employment authorization was implemented via regulation and not changes to the law itself. The District Court ruled against Save Jobs USA in dismissing the case on the basis that Save Jobs USA lacked standing to bring the claim.
As expected, Save Jobs USA appealed the ruling to the Court of Appeals for Washington DC. Its initial brief on the appeal was filed in January 2017. Instead of filing its response brief, the Department of Justice, now under President Trump, filed on February 1, 2017 a “Consent Motion to Hold Proceedings in Abeyance for 60 Days.” The administration essentially stated that it needed more time to evaluate the issues. This sent the immigration world, and specifically the H-1B/H-4 world into a frenzy of fear, anger and speculation as to whether H-4 Spouses, who meet the regulatory criteria would be denied future employment authorization and perhaps stripped of their current authorization.
On April 3, 2017 the Department of Justice again went to court to seek an additional extension of time for it to evaluate the situation and file its response brief – this time seeking a 6 month extension.
Hence we remain unable to advise clients as to the future of H-4 employment authorization. What we can tell you today is the following:
1. H-4 Visa holders who meet the regulatory requires are eligible to apply for and be granted employment authorization.
2. Eligible H-4 Visa holders should continue to apply for employment authorization – both initial applications and extension applications.
We are receiving quite a few calls from H-4 Visa holders asking whether they will be allowed to finish out their approved period employment authorization if the rules are changed. The short answer is: we have no idea. Until something actually happens, either via court order or via a regulatory change, we can only speculate as to what might be the possible outcome. I’ve learned over the years of watching the government try to wrap its arms around the broken immigration system that one should never hold their breath waiting for action on the immigration front – it will happen when it happens. And, once it happens, we will review and react appropriately.
That said, each H-4 Visa holder should consult with immigration counsel to determine whether other visa options exist – options that might take them out of H-4 dependent status to an independent employment-based immigration status, e.g. H-1B, O-1, etc. The likelihood is that only a small percentage of H-4 Visa holders will have other visa options, but some certainly will.