April 17, 2023

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A District Judge recently ruled that the spouses of H-1B visa holders may work in the United States. This decision led to a rejected lawsuit that would have dismissed a previous presidential administration regulation. According to the judge, Congress empowered the federal government to authorize employment as an acceptable condition of stay in the United States for individuals holding an H-4 visa. 

The United States government knew that many highly skilled workers entered the United States for work using H-1B visas. The government also knew these workers suffered long waits to obtain green cards. Before this judgment, H-4 dependents of workers waiting for green cards could not work in the United States. This policy made it difficult for families to remain in the United States, forcing many to leave. As a result, the government created the right to work for these individuals.

This decision follows a similar one made for L-1 visa holders’ spouses to also work in the United States. Hence, the government created this regulation to give the spouses of H-1B visa holders increased opportunities. The goal is to incentivize the H-1B workers to continue working in the United States.

As a result, H-4 visa holders may apply for an Employment Authorization Document (EAD). However, they must wait until the H-1B holders reach a specific stage in the green card processing. This requirement ensures that the H-1B seriously intends to stay in the United States. In addition, an H-4 visa holder’s permission to work does depend on the status of their spouse who holds the H-1B visa. Should the H-1B visa holder lose their status, the H-4 visa holder will lose their right to work.

However, the policy provides leeway for H-1B and H-4 visa holders. For example, the H-4 visa holder will not immediately lose their right to work if the H-1B visa holder loses their job. Instead, the H-1B visa holder will have 60 days to apply for another H-1B visa. Their success will ensure the H-4 visa holder’s EAD is not affected by the job loss.

This ruling will benefit H-1B visa holders, dependents, and employers. Working H-1B spouses increases the chances of visa holders staying in the United States, ensuring employers can keep the additional highly skilled workers.

Employers who hire H-4 visa holders must complete a Form I-9 for these employees as they do for all workers. However, completing Form I-9 for these workers can prove more complicated due to the many forms of documentation they may present. The best way to ensure completed Form I-9s is to use an electronic I-9 management system. This system will guide employers through the process, safely store the forms, and provide important alerts.

Streamline your hiring process with an automated employment eligibility verification and ensure compliance today with I-9Compliance.

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