Until 2015 the spouses of H1B visa holders were not permitted to work in the US, unless they had secured their own H1B visa sponsor and petition approval. However, that rule changed last year, and they can now submit an application for employment authorization based solely on their spouse’s H1B visa.
This is a welcome rule change that could allow over 50,000 spouses to work in the US, but there are still a few requirements to be met. Here is an overview of the essential points to know about eligibility and the approval process to begin working.
Eligibility to Work
This rule change relates specifically to H1B visa holders, since other visas such as the L-1 already give spouses work authorization. So, the first step toward eligibility is that the couple is in the US on an H1B visa.
To be eligible to work, the spouse must have a valid H-4 dependent spouse visa related to the H1B visa holder’s status. The H1B visa holder must also be in the process of seeking employment-based permanent residency in the US, or a ‘green card’. If the H1B visa holder has not begun seeking a green card then they should look into it, since it does takes some time to get a receipt number for a Permanent Residency Application.
What this means is that the H-4 spouses of relatively new H1B visa holders working in the US may not be eligible, since their spouse may not have yet begun the green card process. This is probably the only real barrier to getting approval to work.
What are the Required Documents?
Just as with a formal visa application, there are certain requirements to prove that the H-4 visa holder is eligible to work under this new program. To apply the following are required:
- Application for Employment Authorization
- $380 Filing Fee
- Proof of H-4 Visa Status
- Proof of H1B Visa Spouse Permanent Residency Application (or receipt number)
All of these documents should be submitted together along with the fee to the USCIS.
What is the Process for Approval and When Can I Start Working?
When all of the documents and application are submitted, the USCIS may take at least 90 days to process and issue the authorization. There is no premium processing service available for Form I-765 since it is not really a visa application, and is based an already valid H1B visa. So, H-4 spouses will have to wait the 90 days and cannot accelerate the time frame.
Although the H-4 spouse can look for employment opportunities, they cannot begin actually working until the application is approved and they receive a work permit (Employment Authorization Document).
Because the work permit is based on the spouse’s H1B visa, the H-4 spouse can work as long as the H1B visa is valid. This would include any extensions of stay, and H1B visa transfers.
Why is This an Important Change in Visa Rules?
This is a significant rule change from last year since it potentially grants work status to a number of non-immigrants that is nearly equal to the annual H1B visa cap of 60,000. For some reason, the H1B visa program had previously excluded dependent spouses, while other visas such as the L-1 intercompany transfer allowed work authorization.
Now, dependent spouses can work and pursue their career and contribution to the household, while the couple seeks permanent residency in the US. If you have questions about the H1B visa program or H-4 spousal work authorization, please contact us.
- May 11th, 2016