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S.744 Would Grant Some H-4 Spouses Work Authorization

Lornet Turnbull has an article in today’s Seattle Times entitled Foreign workers’ spouses often stuck in limbo, in which she recounts the experiences of several H-4 visa holders who are the spouses of H-1B temporary professional workers. Ms. Turnbull captures the angst mixed status couples face in deciding whether to come to the US at all, and whether to stay and/or pursue permanent residence. Although H-1B visa holding spouses can work for specific employers in specific jobs, the dependent H-4 spouses and children under 21 may not work at all while in H-4 status. This means inability to derive income from any form of labor for pay. From the employers’ point of view, they cannot attract top talent if their candidates’ spouses cannot work in the US. Unlike American couples who make similar job and moving decisions based on whether an accompanying spouse wants to work and is able to work in a new locale, H-1B candidates have to decide whether to leave loved ones in their country or take jobs where the other spouse will not be able to work.

Inability to work can last for years since the H-4 spouse is dependent upon the H-1B spouse maintaining valid status for up to six years, plus the additional years it takes to pursue permanent residence (green cards), which is usually further delayed by the quota backlogs. The H-4 spouse cannot work until the quota becomes current. This means potentially years of boredom despite being educated and having career options, and quite possibly depression and related family problems unless the H-4 spouse can qualify for a work visa in her own right. Or she may pursue more but unneeded higher education, concentrate on growing the family or performing community service as portrayed in the Seattle Times article. In my Seattle immigration law firm, I have heard from employers whose potential H-1B candidates turn down job offers if the spouse can’t work. If possible, we look for other visa categories where the spouse can work, such as J-1/J-2 exchange visitors, L-1/L-2 multinationals, E-3 Australian nationals, and others. Sometimes the work or career pressures are so high that couples split, just like many American couples where work and finances become a difficult marital issue.

US Senate bill 744, the Border Security Economic Opportunity, and Immigration Modernization Act (S. 744) would provide work authorization (“EAD” cards) for H-4 spouses, but only for some of them, specifically those spouses of nationalities that permit reciprocal employment for Americans who would perform the same type of employment as the H-1B worker. Just who would that be? Not Indians, who make up one of the largest H-1B nationality groups, many of whom have spouses with graduate degrees and professional experience abroad. The H-4 reciprocity rule is one of several H-1B provisions in S. 744 that will make the program less workable.

Personally, I don’t think this provision will stay the same if we get a final Comprehensive Immigration Reform bill, if we get one at all. On the one hand, EADs for H-4s may be nixed altogether because those that dislike the H-1B program argue that allowing so many spouses to obtain open market unrestricted employment is a back door to doubling the number of foreign workers when the principal visa holder and employer have to jump through so many hoops to protect American labor in order to get H-1Bs. On the other hand, a final version of this provision might end up providing H-4s to all nationalities. At the moment, it’s clear that the provision is one of several in S. 744 that are aimed at curtailing Indian H-1Bs generally, among others.