Rule change for dependants of H-1B visa holders as reforms lag


A proposed rule change would allow H-4 visa holders the right to work while waiting on permanent residency.

At the end of April, Utah Senator Orrin Hatch joined Utah entrepreneurs to discuss immigration reform. The leaders of local high-tech firms would like the government to raise the number of non-immigrant work visas available each year, so they can fill specialized positions.

Some of the high-tech business leaders mentioned that they shift employees around, because they cannot bring in enough skilled new ones. Other complained of the fierce competition. One firm even admitted parking an RV in the parking lots of other companies to lure away skilled workers.

While Senator Hatch supports increasing the H1-B quota, he said the House would not take up the Senate-passed immigration reform until after the primary season.

Visa quota filled in five days

The United States Citizenship and Immigration Service can issue up to 85,000 nonimmigrant H-1B visas annually (20,000 are reserved for individuals with master’s degrees or higher). In 2014, USCIS received 172,000 H1-B visa petitions in the first five business days of April. This was a 40 percent increase from last year.

On April 10, USCIS used a lottery system to select petitions to meet the general-category and advanced degree caps. Petitions not randomly selected were returned along with the filing fees.

An immigrant can work for six years in the U.S. on an H1-B visa. While on this visa, an employer can apply for the worker to receive an employment-based green card. Green card waiting times for immigrants from some countries can extend up to 11 years.

A proposed rule change acknowledges the hardship that the waiting times can cause families. While on an H-1B visa any dependents cannot work. This often means that a wife who was a small business owner or engineer puts her career on hold for a number of years.

H-4 work authorization

An H-4 visa is what a dependent spouse or child of an H1-B worker receives. But as discussed this category of visa does not include work authorization.

In an effort to attract and retain high-skilled workers, the Obama administration proposed a rule that enables H-4 spouses to seek work authorization. It is not a blanket measure. Only those with an H-1B spouse who is the beneficiary of an approved I-140 (Immigrant Petition for Alien Worker) or a general extension beyond six years will benefit from the new rule.

This rule change encourages immigrants to remain in the U.S. through what can be a long wait to become a permanent resident. The measure may also reduce some of the demands for H-1B visas, because presumably some of the petitions filed are for skilled spouses of current H1-B holders. On May 12, 2014, the proposed rule was published in the Federal Register and will likely go into effect after a 60-day comment period.

If you have questions regarding employment immigration, contact a local Utah immigration attorney. One wrong step could set you back and missing a filing date could jeopardize your status.

Keywords: H1-B visa, employment-based immigration, work authorization