As of April 2nd, 2023, a federal ruling has confirmed that spouses of H-1B visa holders are authorized to work in the U.S. This ruling confirms the Department of Homeland Security (DHS) regulation that first offered this authorization.
The ruling was issued in Save Jobs USA v. U.S. Department of Homeland Security. Advocacy group Save Jobs USA argued that the DHS was not legally permitted to make rulings regarding work authorizations for visa recipients. The group argued that Congress must grant the DHS this power specifically.
However, U.S. District Judge Tanya Chutkin dismissed the plaintiff’s motion and granted the DHS’s motion for summary judgment. In her opinion, Judge Chutkin wrote, “Plaintiff’s primary contention is that Congress has never granted DHS authority to allow foreign nationals, like H-4 visa-holders, to work during their stay in the United States. That contention runs headlong into the text of the [Immigration and Nationality Act], decades of executive-branch practice, and both explicit and implicit congressional ratification of that practice.”
This is excellent news for spouses of H-1B recipients, who are typically in the U.S. on H-4 visas. By affirming the right of DHS to grant them work authorization, Judge Chutkin has ensured that more than 90,000 H-4 visa holders can continue to work and support their families.
This also significantly increases the desirability of H-1B visas going forward. Potential candidates do not have to sacrifice their spouse’s career to begin working in the U.S. As such, employers may continue to recruit skilled foreign nationals of all family statuses without the complications of a mandatory one-income family. Here’s how the ruling will affect H-4 recipients in the future.
What Can H-4 Visa Holders Officially Do in the U.S.?
H-4 visas are restricted to immediate family members of H-class employment visa holders. This primarily includes spouses and domestic partners but may also cover dependents and unmarried children younger than 21. People with an H-4 visa can do things like:
- Get a U.S. driver’s license
- Open bank accounts
- Get tax I.D.s
- Attend school, including college
Just as importantly, H-4 beneficiaries may change their immigration status. These are known as dual-purpose non-immigration visas. A recipient can be in the U.S. as a direct family member to an H-1B beneficiary while pursuing their green card. They may also change to an F-1 student visa or an H-1B visa themselves if they find a sponsor and are chosen in the H-1B lottery.
Additionally, the recent federal court ruling has confirmed that H-4 visa holders who are spouses of an H-1B visa holder are fully authorized to work in the U.S.
How to Ensure an H-4 Visa Holder Is Eligible to Work in the U.S.
Employment authorizations are now permitted for H-4 recipients but are not automatic. To receive appropriate approval, a beneficiary must file Form I-765, Application for Employment Authorization, and receive an Employment Authorization Document (EAD) in return.
This form notifies USCIS that the filer would like to work in the U.S. upon arrival. The EAD is what permits employers to actually hire the filer. Until a beneficiary has received their EAD, they are still not allowed to work in the U.S.
The most efficient way to receive an EAD as an H-4 beneficiary is to submit Form I-765 alongside the rest of the initial USCIS application. This allows the EAD to be granted at the same time as the visa, so the recipient may begin work immediately.
However, if a beneficiary has not submitted an I-765 with the initial petition, they may submit it later. The application may take several months to be approved if filed separately. It is best to submit the form as early as possible while ensuring it is complete and error-free.
Consult Litwin & Smith for H-4 Visa Employment Authorization Applications
At Litwin & Smith, we specialize in representing clients and sponsors seeking the opportunity to start employment in the U.S. With the confirmation that H-4 beneficiaries may receive EADs, we are prepared to assist company sponsors with submitting I-765 forms for their H-1B candidates’ spouses. Reach out to discuss your needs with our employment immigration law firm today.
