H-4 Visa Holders Can Apply for Employment Authorizations (under Limited Circumstances)

United States Immigration Series

Post No. 8

Francisco A. Laguna & Chenai Rusike

On May 26, 2015, the US Court of Appeals for the 5th Circuit in New Orleans refused to lift an injunction on President Obama’s executive action to stay the deportation of over 4 million illegal immigrants and issue such immigrants work permits. This was a key component of the President’s immigration reform proposals. The 2-1 decision by the 5th Circuit casts doubt over the success of President Obama’s proposed immigration reform, especially as the 2016 election season approaches.

US Immigration Passport Stamp by Pmkpmk (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

US Immigration Passport Stamp by Pmkpmk (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

May 26th, however, also marked a positive step for immigration reform in the United States. As of May 26, 2015, H-4 dependents are now eligible to apply for an Employment Authorization Document (EAD) to work in the United States. H-4 visa holders come into the country as defendants of H-1B visa workers. To be eligible for an H-4 visa, an applicant must be the spouse or the unmarried child under the age of 21 of an H-1B visa holder.  Prior to May 26th, an H-4 dependent could not work in the United States.  Rather, they were limited to furthering their education during their stay in the US.

H-4 dependents are oftentimes also highly skilled individuals, who, as of May 26th, are able to participate and contribute to the American economy. Immigrants are more likely to start businesses, which shall provide new jobs for the economy. Secretary of Commerce, Penny Pritzker, as a guest blogger on the Department of Commerce website stated that “Immigrants started one of every four small businesses and high-tech startups across America, and more than 40 percent of Fortune 500.”

Many H-1B visas are issued to highly skilled STEM (Science, Technology, Engineering and Mathematics) professionals. STEM professionals tend to create jobs through their innovative work.

US Immigration Rates by Country 2001 -2005 by BGManofID at English Wikipedia [Public domain], via Wikimedia Commons

US Immigration Rates by Country 2001 -205 by BGManofID at English Wikipedia [Public domain], via Wikimedia Commons

Prior to May 26, 2015, many highly skilled foreign nationals were attracted by the possibility of coming to the US possibly to work for a Fortune 500 company or a top tier high-tech firm.  However, after weighing the pros and cons, many decided to choose other countries that compete with the US in their respective industries because those countries offered more attractive non-immigrant visa restrictions.  This forced US companies to increase compensation packages offered to potential H-1B candidates to make up for the salary gap resulting from their spouses’ inability to work while in this country.  By allowing the dependents of H-1B visa holders the opportunity to work in the US, US companies can now offer lower compensation packages to those visa holders.

Equally important, this new reform will likely improve the morale of the home.  For some H-4 dependents, not being able to contribute to the home has been the cause of physical and mental abuse in the home. These H-4 dependents were at the mercy of their H-1B spouses, who would threaten to divorce them or, threaten not to extend their H-4 Visa. Today, they have been given a new voice in their home.

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

Although this is a step in the direction of immigration reform, the ability of an H-4 visa holder to apply for an EAD is quite limited and continues to be dependent on the status and position of the H-1B worker. To be eligible, the H-1B spouse must be in the United States for over 6 years, or have filed a petition to change status to a legal permanent resident, known as an I-140 Immigrant Petition for Alien Worker.  The I-140 is filed by the H-1B worker’s US employer.  In addition, there are yearly quotas for EADs available to H-4 dependents.  For the first year of the program, the quota shall be 179,600; for subsequent years, the quota falls to 55,000.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.

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