Beginning on May 26, 2015, new rule changes will allow many in H-4 visa status to file for a work permit. H-4 visa holders are the spouses and children of employees in the U.S. on an H-1B visa (a temporary visa for professional and high skilled workers). H-4 status does not bestow work authorization, which has resulted in personal and economic hardship for many foreign nationals who are often as highly skilled and educated as their H-1B spouses.
USCIS (U.S. Citizenship and Immigration Services) has changed its regulations, however, to allow work permits for certain H-4 spouses, where the H-1B spouse has met particular milestones in the greencard process. This change is significant because the work-based greencard process involves a lengthy wait, even spanning over 10 years in some categories.
Who can apply for the new H-4 work permit?
A spouse of an H-1B non-immigrant in H-4 status (or who is filing for a change to H-4 status) can file for the work permit starting May 26, 2015 if they can prove:
- That their H-1B spouse has an approved I-140 visa petition or;
- That their H-1B spouse been granted an H-1B extension beyond the 6th year H-1B maximum, based upon either an approved I-140 petition or via a PERM (Labor Certification) / I-140 petition filed by the 5th year in H-1B status.
USCIS states the applications will be processed in 90 days, but those who file the work permit with a change or extension of status at the same time should expect a longer wait. This is because the 90 day work permit processing time is counted from the approval of the change or extension of status. Meaning, the work permit might not begin processing until the end of the 90 days.
Work authorization for abused H-4’s
An H-4 visa holder who is being abused may qualify for separate work permit eligibility, even if they do not meet the criteria above. In 2005, Congress passed Section 814(c) of the Violence Against Women Act and Department of Justice Reauthorization Act of 2005 [VAWA 2005, Public Law 109–162] which provides eligibility for employment authorization to battered H-4’s and certain other visa categories. Unfortunately, USCIS has yet to finalize the process on how applicants can file for these work permits. In December 2012, USCIS issued a draft memorandum on this provision in which US CIS solicited public comments. See: LINK
We hope to see further guidance on this eventually, though, and some experts have suggested a written request to USCIS may help. Keep in mind, there may be other options for abused immigrants based upon a U visa, the VAWA self-petition process, or other humanitarian relief.
No matter your particular situation, contact us so we can help you advise on your options and strategy. The attorneys at Antonini & Cohen have many years of experience in all areas of immigration law. Call us today at 404-850-9394 or click here to complete our contact form.
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