H-4 visa holders - are they allowed to work?

[vibhuvijayan]

I was under the impression H4 visa holders(Dependents) are not allowed to work. But came across following at Department of Homeland Security(http://www.dhs.gov/y...immigrants.shtm).

• Provide work authorization for spouses of certain H-1B holders.
  

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

Can you please Clarify?

Thank you

[JoeF]

First, that's something that is proposed. It is unlikely to get through.

Second, even if, it would only be for spouses of people who have a pending I-485. In that case, it would allow the spouse to work even though the spouse doesn't have an I-485 pending, e.g., due to retrogression.

[nivas2010]

For people who have pending I-485, would also have EAD(after 180 of applying), there is no need of this regulation, right.

[h1b_guy12]

First, that's something that is proposed. It is unlikely to get through.

Second, even if, it would only be for spouses of people who have a pending I-485. In that case, it would allow the spouse to work even though the spouse doesn't have an I-485 pending, e.g., due to retrogression.

JoeF,

I think you are wrong. This a proposed rule by DHS, unlike a bill which has to be passed in Congress. So, this one has more chance of getting through because it will not be affected by any congressmen. Also, read the DHS website, "Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S." Also, see this interpretation from a prominent immigration lawyer, "In the future, they may qualify for work authorization after a PERMapplication is approved for the H-1B spouse, or when an I-140 is filed".

If it was intended for H-4s whose spouses have filed I-485, then it wouldn't make sense because that number is very small. I am not sure how the final rules come out with, but it will be something for people whose spouses have approved PERM or I-140.

[h1b_guy12]

For people who have pending I-485, would also have EAD(after 180 of applying), there is no need of this regulation, right.

Yes, people who have a pending I-485 will not be affected by this rule. The proposed rule would benefit people who cannot file I-485 because their dates are not current.

[JoeF]

For people who have pending I-485, would also have EAD(after 180 of applying), there is no need of this regulation, right.

The 180 day rule is for the primary applicant. That's a different thing.

The spouse would only on H4 if the primary applicant works on H1, not using an EAD. If the primary applicant uses an EAD, the spouse would also have to have an I-485 pending, and could just use an EAD to work, so in that scenario, this proposed regulation would not apply.

[JoeF]

JoeF,

I think you are wrong. This a proposed rule by DHS, unlike a bill which has to be passed in Congress.[/ So, this one has more chance of getting through because it will not be affected by any congressmen. Also, read the DHS website, "Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S." Also, see this interpretation from a prominent immigration lawyer, "In the future, they may qualify for work authorization after a PERMapplication is approved for the H-1B spouse, or when an I-140 is filed".

If it was intended for H-4s whose spouses have filed I-485, then it wouldn't make sense because that number is very small. I am not sure how the final rules come out with, but it will be something for people whose spouses have approved PERM or I-140.

[JoeF]

JoeF,

I think you are wrong. This a proposed rule by DHS, unlike a bill which has to be passed in Congress.

Well, DHS can not change the laws. They can only interpret the laws.

To me, this looks like a law change, so I don't think DHS can do that.

[JoeF]

JoeF,

I think you are wrong.

You most likey think wrong.

My post was based on this part: "while their visa holder spouse waits for his or her adjustment of status application to be adjudicated." (emphasis mine.)

The "adjustment of status application" is the I-485. Certainly not the I-140.

And the I-140 is not filed by the applicant, it is filed by the employer.

Also, see this interpretation from a prominent immigration lawyer, "In the future, they may qualify for work authorization after a PERMapplication is approved for the H-1B spouse, or when an I-140 is filed".

Based on the language of the proposed change, I think that "prominent" lawyer is wrong....

Adjustment of status is the I-485, as every lawyer worth his or her money should know.

[JoeF]

Yes, people who have a pending I-485 will not be affected by this rule. The proposed rule would benefit people who cannot file I-485 because their dates are not current.

It would benefit spouses who can not file I-485s because of retrogression, where the primary applicant has filed an I-485 earlier.

An example: somebody is single while filing the I-485, later the person marries, and the spouse can not file an I-485 because of retrogression. This rule would benefit the spouse.

Think of people in EB3 who filed I-485s during the July 2007 situation, may have a long wait ahead, and may wish to marry. That's the kind of situation this would address.

[h1b_guy12]

See this latest update on reginfo.gov website:

DHS/USCIS RIN: 1615-AB92 Publication ID: Spring 2011 Title: ●Allowing Certain H-4 Dependent Spouses to Apply for Employment Authorization. Abstract: The Department of Homeland Security (DHS) proposes to amend its regulations by extending the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident (LPR) status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104© or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies, and thus allow the United States to remain a world leader in high technology. Agency: Department of Homeland Security(DHS) Priority: Other Significant

This doesn't say anywhere 'Adjustment of Status' application. Probably it refers to H1-Bs who extended their H1-B beyond 6 years based on pending/approved I-140

[bartender]

I found this article which says that H4 dependent will be allowed to work if the H1 visa holder is here for more than 6yrs which obviously means the Labor and I-140 was approved. But as always its very confusing. I wish Murthy weekly bulltein explains this in layman terms.

http://www.******

[goodluckishere]

When is this law expected to be effective?

[JoeF]

When is this law expected to be effective?

It is not a law. DHS can not make laws. Only Congress can.

THis is a proposed change. At this point, nobody knows when this would be effective, or if at all.

Don't get your hopes up yet. As you can see from this thread, it is quite a bit in flux. They first had the "adjustment of status" stuff in there, currently they don't, but who knows if they add it back in.

[JoeF]

I found this article which says that H4 dependent will be allowed to work

Sigh. Nobody "will" be allowed to work.

This is a proposal. If it goes through, then certain people would be allowed to work.D

on't make it sound as if it is a done deal. It isn't.

And any article claiming otherwise is deceptive.

[catx]

JoeF,

This is my first time being able to reply to a topic on the Murthy Law forums, but I have read a number of them, and found your posts accurate and thoughtful (something that cannot be said about the majority of posts on immigration forums). I especially appreciated your position and comments on H.R. 3012.

To all,

I have been a legal immigrant in the U.S. for 24+ years (~ half my life), including for past 16 years under TN and H-1B visas. Due to some unfortunate legal advice and company changes, I was only able to work toward and file for permanent residency - EB3-ROW (Canadian) - in 2008 with a 2010 priority date.

With the current backlogs, and the prospect of H.R. 3012, about my only hope of sticking it out for permanent residency is the DHS H-4 employment authorization rule change. As is currently written it would apply for my wife in 2013. I am hoping that during the comment period to submit a response on the faint hope that they change it to after obtaining I-140 approval (my status).

(As it stands, my son, who has been legally in the U.S. since kindergarten, lost his right to a derivative permanent residency (turned 21 this month), and I have had to change him to an F-1 visa so he could at least complete his biology degree. My daughter starts college this fall. I am putting them both through school on my salary with no federal financial aid even though I have paid all my taxes in the U.S. since moving here in 1995.)

Thank you for the opportunity to post this comment.

[bjonnada]

^{Let’s hope this proposal happens at least spouses of H1 holders who have extended (I/C/ROW) after 6 years can apply for work authorization.}

[preetu87]

I'm under H4 dependent visa and trying to apply for a job. Is it possible to work from home for a concern which is located outside the US and that the payroll is being run there and I get salary remitted in dollars here? Kindly let me know.. I enquired one of the tax consultants in the US and came to know that I can consider this job as a self-employment option but file tax to show that I earn through self-employment. Can someone help me on this? I'm still unsure of accepting the offer.

Thanks in advance!

[JoeF]

I'm under H4 dependent visa and trying to apply for a job. Is it possible to work from home for a concern which is located outside the US and that the payroll is being run there and I get salary remitted in dollars here?

No, that is not allowed.

It doesn't matter where the company is located, it matters where you are located.

I enquired one of the tax consultants in the US and came to know that I can consider this job as a self-employment option but file tax to show that I earn through self-employment.

Self-employment is also not allowed on H4.

That is all work, and as long as you are in the US on H4, you can not work at all. Not for a US company, not for a company abroad, not self-employed.

[vinnomula]

I heard that certain H4 holders (who's I-140 got approved) can work from March 2010 is it true? Are they work from March 2012 is it approved by the government?

[dgm]

When you hear please put the link where the information is shared. So it would be benefit others.

[JoeF]

I heard that certain H4 holders (who's I-140 got approved) can work from March 2010 is it true? Are they work from March 2012 is it approved by the government?

You heard wrong. Don't listen to rumors.

[san1014]

All,

It looks like there is some positive development in this matter and hopefully we will have a favorable outcome in about 6 months time...read the latest update below, this rule is now sitting with White house / OMB for initial approval..submitted on 12/10/12..

View Rule

Printer-Friendly Version Download RIN Data in XML

DHS/USCIS RIN: 1615-AB92 Publication ID: 2012

Title: Employment Authorization for Certain H-4 Dependent Spouses Abstract: The Department of Homeland Security (DHS) proposes to amend its regulations by extending the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104© or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies. Agency: Department of Homeland Security(DHS) Priority: Other Significant RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage Major: No Unfunded Mandates: No CFR Citation: 8 CFR 274a.12© (To search for a specific CFR, visit the Code of Federal Regulations.) Legal Authority: INA sec 214(a)(1) 8 USC 1184(a)(1) ; INA 274A(h)(3) 8 USC 1324a(h)(3) ; 8 CFR 274a.12©; sec 104© of PL 106-313; sec 106(a) of PL 106-313; ...

Legal Deadline: None

Statement of Need: Congress intended that the AC21 provisions allowing for extension of H-1B status past the 6th year for workers who are the beneficiaries of certain pending or approved employment-based immigrant petitions or labor certification applications would minimize the disruption to U.S. businesses employing H-1B workers that would result if such workers were required to leave the United States. DHS recognizes that the limitation on the period of stay is not the only event that could cause an H-1B worker to leave his or her employment and cause disruption to the employer's business, inclusive of the loss of significant time and money invested in the immigration process. The rule, as proposed by this NPRM, is intended to mitigate some of the negative economic effects of limiting H-1B households to one income during lengthy waiting periods in the adjustment of status process. Also, this rule will encourage H-1B skilled workers to not abandon their adjustment application because their H-4 spouse is unable to work.

Summary of the Legal Basis: Sections 103(a), and 274A(h)(3) of the Immigration and Nationality Act (INA) generally authorize the Secretary to provide for employment authorization for aliens in the United States. In addition, section 214(a)(1) of the INA authorizes the Secretary to prescribe regulations setting terms and conditions of admission of nonimmigrants.

Alternatives: An alternative considered by DHS was to permit employer authorization for all H-4 dependent spouses. In enacting AC21, Congress was especially concerned with avoiding the disruption to U.S. businesses caused by the required departure of H-1B workers (for whom the businesses intended to file employment-based immigrant visa petitions) upon the expiration of workers' maximum six-year period of authorized stay. Although the inability of an H-4 spouse to work may cause an H-1B worker to consider departing from the United States prior to his or her eligibility for an H-1B extension. This alternative was rejected in favor of the proposed process to limit employment authorization to the smaller sub-class of H-4 nonimmigrants who intend to remain in the United States permanently and who have been granted an extension of H status under the provisions of AC21.

Anticipated Costs and Benefits: The proposed changes would only impact spouses of H-1B workers who have been admitted or have extended their stay under the provisions of AC21. The costs of the rule would stem from filing fees and the opportunity costs of time associated with filing an Application for Employment Authorization for those eligible H-4 spouses who decide to seek employment while residing in the United States. Allowing certain H-4 spouses the opportunity to work would result in a negligible increase to the overall domestic labor force. The benefits of this rule are retaining highly-skilled persons who intend to adjust to lawful permanent resident status. This is important when considering the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which are highly correlated with overall economic growth and job creation. In addition, the proposed amendments would bring U.S. immigration laws more in line with other countries that seek to attract skilled foreign workers. Timetable: Action Date FR Cite NPRM 03/00/2013

Additional Information: Includes Retrospective Review under E.O. 13563. Regulatory Flexibility Analysis Required: No Government Levels Affected: None Small Entities Affected: No Federalism: No Included in the Regulatory Plan: Yes RIN Information URL: www.regulations.gov Public Comment URL: www.regulations.gov Initial (Administrative Startup and /or Capital) Cost: $0 Yearly (Annual Operating) Cost: $0 Base Year of the Dollar Estimates: RIN Data Printed in the FR: No Agency Contact:

Kevin J. Cummings

Chief, Business and Foreign Workers Division

Department of Homeland Security

U.S. Citizenship and Immigration Services

Office of Policy and Strategy, 20 Massachusetts Avenue NW.,

Washington, DC 20529-2140

Phone:202 272-1470

Fax:202 272-1480

Email: kevin.j.cummings@uscis.dhs.gov

[catx]

Note for reference: This development on the H-4 spouse employment authorization rule (submission to the OMB for initial approval) has been posted on other topics in the WORK > H1B: H4 issues and SPECIAL TOPICS > Legislation forums.