New research shows that spouses of H-1B visa holders represent a large pool of untapped talent who can work in the United States with just a few strokes of the regulatory pen. The United States government has marginalized many highly educated professionals, especially women, who can contribute to the American economy.

In 2015, Obama administration officials made the ethical and economic choice to allow spouses of H-1B visa holders to work in the United States. Under Department of Homeland Security (DHS) regulation, if a professional H-1B spouse has an approved immigration petition (I-140), this is an essential step in obtaining an employment-based green card, and the spouse in H-4 dependent status is eligible for Employment Authorization Document (EAD). The rule also applies if the H-1B professional has waited a year since filing an I-140 petition or permanent employment certificate and H-1B status is extended beyond 6 years.

According to Madeleine Zavodny in a new National Foundation for American Policy (NFAP) analysis.

Canada grants work permits to spouses of all skilled foreign workers, Toronto immigration attorney Peter Rickey notes. He points out that Canada has acquired highly skilled international students and immigrants due to the country’s more favorable immigration policies compared to the United States.

The 2015 regulation made two main arguments in favor of granting a business license. First, it will help employers and the United States attract and retain highly skilled foreign nationals on H-1B visas. Second, the regulation stated that “the rule would also bring US immigration policies regarding this category of highly skilled workers more in line with those of other countries competing to attract similarly skilled workers.”

It is clear to employers, lawyers, and analysts that the 2015 rule on the H-4 EAD has not gone far enough since 1) it only allows a select group of spouses of H-1B visa holders to obtain permission to work and 2) the rule fails to grant spouses the ability to work” case to case” (ie there is no requirement to file a separate file). As a result, the 2015 rule does not bring US immigration policies in line with Canada’s approach to spouses of highly skilled foreign workers. US policy is still more restrictive.

There is no legal reason from USCIS [U.S. Citizenship and Immigration Services] John Wasden, partner at Wasden, Bless & Forney, said in an interview. “USCIS certainly has the authority to expand work capacity to all H-1B spouses. Issuing a work permit to the spouses ‘accident to position’ would avoid employment gaps that spouses have experienced due to USCIS processing delays. It will allow spouses to retain the ability to work. As long as the principal H-1B visa holder remains in position.”

Madeline Zavodny believes that current USCIS regulation prevents many highly educated individuals, especially women with STEM education, from working and contributing to the American economy. Zavodny was an economist at the Federal Reserve Bank of Atlanta (and Dallas) and is now a professor of economics at the University of North Florida at Jacksonville.

Zavodny estimates that nearly 90% of spouses of H-1B visa holders have at least a bachelor’s degree, and more than half have a graduate degree, based on US Community Survey data (2017-2019). Nearly half of spouses of prospective H-1B visa holders with a bachelor’s degree had a STEM-related major. Of the spouses of prospective H-1B visa holders who work, 42% work in STEM .”

Zavodny estimates that 90% of spouses of H-1B visa holders are female, two-thirds from India, and 6% from China. The data shows a strong desire to work among spouses of H-1B visa holders. According to Zavodny, “The United States could reap significant economic benefits, alleviate a labor shortage, and attract more workers in the global competition for talent if it expands existing rules on work eligibility for spouses of H-1B visa holders.”

A change in USCIS regulations will bring the immigration policy for spouses of H-1B visa holders into line with pairs of L-1 (intracompany transfer), E-1 (treaty trader), E-2 (treaty investor) and E -3 (specialty profession worker from Australia). Work permit for spouses of L-1, E-1, E-2, and E-3 visa holders is “relevant to status.”

Lawyers point out that expanding the work mandate to more H-1B pairs and making it an “incident in case” would relieve USCIS from the significant processing burden that the agency was unable to meet.

In response to employment gaps among spouses of H-1B visa holders trying to renew H-4 EADs, USCIS recently introduced an automatic extension of up to 540 days. Noah Kluge of the law firm Kluge notes a potential pitfall for employers and spouses with USCIS’ automatic extension policy. Kluge said that under USCIS policy, an extension of the H-4 EAD can last until the expiration date of the I-94 check-in/departure record, and the H-4 pair may be out of luck if the I-94’s validity period lapses. Approvals for an I-94 extension can take anywhere from 5 to 7 months.

Klug sees situations in which an employer fills out a Form I-9 (for employment eligibility) will find that the H-4 EAD extension file does not get the full 540 days but only the date until the validity of the H-4/I-94. Because the H-4 EAD extension and the I-94 extension are offered concurrently, it could mean that the H-4 pair doesn’t benefit from an automatic EAD extension because their I-94 expires on the same date as their EAD, Klug says.

In an agency policy alert (dated November 12, 2021), “USCIS believes these changes will help avoid work permit and documentation gaps for H-4, E, and L dependent spouses with an EAD renewal application. Does not require first classifying in a core application. However, the Form I-94 is an example of an “essential application.” (Emphasis added.)

“This is a real thing,” William Stock of Klasko Immigration Law Partners said in an interview. “This just came to the H-4 spouse of a client whose H-1B has been extended, but the H-4s are no longer processed with the H-1B, so requests for the spouse’s H-4 and EAD are still pending. Husband is ready to travel and re-enter with H- 1B of her husband’s extended until her H-4 I-94 is extended, though such a trip would be inconvenient for her and her employer.”

Stock is unsure whether USCIS’ current automatic extension policy will satisfy all employers. “At least, it is ambiguous enough that an employer may not feel comfortable relying on automatic extension. This means that a lot of professional couples will need to plan for a highly processed H-1B extension, then a spouse trip to get an extended H-4 to match their H- 1B, then submitting a document renewal work permit to defend their status is what allowed the EAD to be issued.”

While critics of H-1B visas will likely be opposed to extending work permits to include more spouses, work authorization documents work the way these critics say they would like the H-1B visa category to work. “H-4 spouses with EAD can work for any employer, enabling them to find a better match for their skills, for their own benefit and macroeconomic benefit,” Zavodny wrote. “Having an EAD also allows H-4 spouses to start their own businesses that will eventually create jobs for others, which is an additional net macroeconomic gain.”

Zavodny concludes that “if they were allowed to work, these spouses would make significant contributions to the American labor market because most would enter jobs with very low unemployment rates and high job vacancy rates.”

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