Can the Spouse of an H-1B Visa Holder, and H-4, Legally Work In the US?

A 2015 change to an immigration regulation now allows spouses of H-1B holders the chance to work in the U.S. The change means that spouses no longer have to stay home and put a hold on their careers.

Rupert Murdoch recently authored an op-ed in the Wall Street Journal advocating for broad immigration reform. One of his main points was that the U.S. should abandon the H-1B work visa cap.

In his op-ed, Murdoch cited a statistic that in 2011 immigrants started almost 30 percent of new U.S. businesses. However, if a foreign worker were starting a new business, they would require an E-2 investment visa and not an H-1B work visa, which only allows the foreign employee to work for an employer not own or start a company. If they did they would be subject to revocation of their H-1B work visa. On the other hand, if the person is already a legal permanent resident (“immigrant”) of the United States, then they can start a business and they would not require an H-1B work visa as they would already hold an immigrant visa.

Murdoch then expressed worries that the current restrictions on high-skilled worker immigration hurt innovation and leave companies struggling to find qualified workers. Reason being that the cap limits the number of foreign non-immigrant workers who can obtain employment in the United States.

What are the requirements for an H-1B work visa?

Generally, the H1-B work visa is reserved for skilled workers who have a bachelor’s degree or above. The position must be in a specialty field related to the non-immigrant’s education. The employer sponsoring the employee for the visa will need to submit a detailed package to USCIS including an explanation of the specific duties or the complexities of the role that the non-immigrant worker will engage in, including how their degree will help complete the required work.

The employer must show that it will pay the prevailing wage. The labor certification process uses U.S. Department of Labor wage data. The location of employment (even Tucson, AZ, vs. Phoenix, AZ or Dallas, TX vs. Austin, TX) will make a difference in the prevailing wage, as will other factors including the position and the experience level of the non-immigrant worker.

And as stated by Murdoch, there is the yearly cap on H-1B visas problem. Each fiscal year, the U.S. allows only 65,000 H-1B visas to be issued (unless they are non-cap positions). For those with a master’s degree, MD or PhD, there are an additional 20,000 visas available. Several narrow exceptions from the cap exist for those employed by institutions of higher education and nonprofit or government research organizations, which allow for additional visas however, these positions typically pay less.

In 2014, the United States Citizenship and Immigration Services (USCIS) stopped accepting petitions after five days. This showed there was more demand for this type of visa than the number of visas available. A granted petition for an H-1B work visa allows an employee to work in the U.S. for up to three years and then allows for another three-year work visa before the non-immigrant would need to leave the U.S. or before the expiration of the six-year period, file for Permanent residency through the employer. Any dependents (spouse or children under 18) will receive legal H-4 status in the U.S. which allows them to remain legally in the U.S. under this status.

Can an H-4 spouse work in the U.S.?

Traditionally, those with H-4 status do not receive work authorization. President Obama sought to change this and he issued a Rule (not a change in law) that allows some H-4 spouses the right to work, if they apply for work authorization and are approved.

A company, Splunk, which creates data mining tools, used its software to analyze the comments received so far, in determining the outcome of the proposed Rule. People in favor of the Rule greatly outnumbered those opposing the Rule. Further analysis showed that of the 6,650 comments only 615 were unique. The amount of non-unique comments probably reflects grassroots campaigns designed to help implement the new Rule. The comment period closes on July 11, 2014 and then the proposed Rule could be adopted soon after.

Whether you are an employer completing a worldwide search for the right candidate or an international employee with a pending offer, speaking to an experienced immigration attorney can ease the work visa process and ensure your success in obtaining the visa. Employers generally pay for legal fees and the H-1B processing fees.

However, beware! If you are a candidate for an H-1B work visa or if you need an H-1B visa in order to legally work in the United States and if the potential employer asks you to pay money for an interview or offer, or if they expect you to pay back wages to the employer, this may be improper employment and you should consult a qualified immigration lawyer before agreeing to any such arrangement.

Keywords: H-1B work visa, H-4 work authorization, E-2 investment visa, work authorization