Changes in H-1B Visa Rules Benefit Spouses

 Posted on March 27,2015 in Immigration

For years now, skilled workers have been permitted to immigrate temporarily to the United States under an H-1B visa. While most employment visas permit the holder to take his or her spouse and children along, he or she has not been permitted to obtain employment (with rare exceptions). However, that may soon change, depending on conditional factors.

The H-1B Visa

H-1B visas are non-immigrant employment visas, granted for a term of six years. They are to be used to hire foreign workers when no qualified candidates are available in the United States. They are granted to those of ‘special ability,’ which is essentially the best and brightest.

A worker does not technically apply for an H-1B visa; rather, he or she accepts a job offer from a U.S. employer, who then petitions for the visa for that worker. To qualify, the worker must meet five major criteria:

• He or she must have an employer-employee relationship with that company, meaning that the company can hire, fire, supervise, or otherwise control that person’s work;

• He or she must have a job qualified as a specialty occupation. A specialty occupation is defined as a job that requires a “theoretical and practical application of a body of highly specialized knowledge,” and often mandates at least a bachelor’s degree;

• The specialty occupation must be in a job related to the worker’s field of study;

• The worker must be paid the actual or prevailing wage for his or her occupation, whichever is higher; and

• An H-1B number must be available. There is a limit of 65,000 available per cap year.

If the petition is approved, an H-1B worker may bring his or her spouse and their minor children with them as dependents, classified as holders of H4 visas. After the initial term of their visa, the H1B holder may apply to adjust status, and depending on circumstances, may apply for Lawful Permanent Resident (LPR, or “green card holder”) status.

H4 Visa Holder Changes

Historically, the spouses of H-1B holders, as dependents, were not permitted to work or even apply for a Social Security number. H4 visa holders were able to get driver’s licenses and open bank accounts—even get tax identification numbers—but Social Security numbers were not permitted. This is still the case for the majority of H4 visa holders. However, if an H4 holder is married to an H-1B holder who is in the process of applying for a green card, a recent Department of Homeland Security (DHS) ruling will allow them to apply for a work permit.

This move makes logical sense; if someone is applying to become a LPR, he or she must prove that they will be able to support themselves and their family. Permitting the person’s spouse to work not only helps with that hurdle, but also allows the family to put more back into the economy. Current estimates guess that as many as 179,000 spouses of H1B holders could apply for work permits this year, with 50-60,000 doing so in the years to come. There have been some opponents to the bill—Republicans allege that the jobs that will be taken should go to U.S. citizens—but the outlook appears generally positive.

An Immigration Attorney Can Help

Sometimes, even when the way appears clear, there can be confusion. In those instances, it is best to have a professional on your side. The Chicagoland immigration attorneys at Mevorah & Giglio Law Offices are well versed in the nuances of employment law, and can help you and your family stay together as you navigate a process that can be complex at the best of times. Contact us for a free initial consultation.