Can Spouse Work on H-1B Visa? A Comprehensive Guide

Can Spouse Work on H-1B Visa
Can Spouse Work on H-1B Visa

 

If you are an H-1B visa holder, you may be wondering if your spouse can work in the United States.

The answer is not straightforward, as it depends on several factors, such as your spouse’s visa status, eligibility criteria, and application process.

In this article, we will explain everything you need to know about whether a spouse can work on an H-1B visa in 2023.

What is an H-1B visa, and who can get it?

An H-1B visa is a non-immigrant visa that permits foreign workers in specialized fields to work in the United States for a maximum period of six years.

A specialized occupation is defined as one requiring at least a bachelor’s degree in a specific field directly related to the job.

Examples of such occupations include engineering, IT, medicine, law, accounting, and education.

To secure an H-1B visa, an individual must receive a job offer from a U.S. employer willing to sponsor the visa.

The employer is required to file a petition with the U.S. Citizenship and Immigration Services (USCIS), demonstrating a shortage of qualified U.S. workers for the role, the applicant’s requisite qualifications and skills, and a commitment to paying the prevailing wage for the occupation.

The USCIS approves a limited number of H-1B visas annually, presently capped at 85,000.

What is an H-4 visa, and who can get it?

An H-4 visa functions as a dependent visa, allowing the spouse and unmarried children under 21 of an H-1B visa holder to accompany them to the United States.

The duration of stay for an H-4 visa holder is contingent upon the H-1B visa holder maintaining their status.

Holders of an H-4 visa possess the freedom to study, travel, and apply for a driver’s license within the United States.

Eligibility for an H-4 visa is restricted to spouses or children of H-1B visa holders. The application process involves applying at the U.S. embassy or consulate in one’s home country.

Applicants are required to submit their passport, a completed visa application form, a photograph, a fee, and documentation such as a copy of the marriage certificate or birth certificate to establish the relationship with the H-1B visa holder.

Additionally, applicants need to provide a copy of the H-1B visa holder’s passport, visa, and approval notice.

Can an H-4 visa holder work in the United States?

By default, individuals holding an H-4 visa are not permitted to work in the United States.

However, some exceptions enable specific H-4 visa holders to apply for an Employment Authorization Document (EAD), a card permitting them to work in the country.

The EAD comes with flexibility, allowing employment without restrictions on type, location, or duration.

EAD holders have the freedom to work for any employer, in any industry, on a part-time or full-time basis, or even establish their own business.

To be eligible for an EAD, an H-4 visa holder must meet one of the following criteria:

  1. The principal beneficiary of the H-1B visa holder has an approved Form I-140, Immigrant Petition for Alien Worker, a key step in the green card process.
  2. The H-1B visa holder has received an extension of stay beyond the six-year limit under the American Competitiveness in the Twenty-First Century Act (AC21). This provision allows certain H-1B visa holders with a pending or approved Form I-140 to continue working until their green card is issued.

To initiate the EAD application process, an H-4 visa holder must submit Form I-765, Application for Employment Authorization, to the USCIS.

Required documentation includes a copy of their passport, visa, I-94, marriage certificate, and the H-1B visa holder’s passport, visa, I-94, and I-140 approval notice or evidence of AC21 extension.

Additionally, a fee of $410 and two passport-style photos are mandatory.

The processing time for an EAD varies, ranging from a few weeks to several months, contingent on the USCIS workload.

Employment can commence only after the H-4 visa holder receives their EAD card.

What are the latest developments on the H-4 EAD rule?

The introduction of the H-4 EAD rule in 2015 by the Obama administration aimed to permit specific H-4 spouses to engage in employment within the United States.

However, the rule faced jeopardy when the Trump administration proposed its revocation in 2017.

Legal challenges and public comments resulted in a delay in the proposal. Recently, the Biden administration has taken a significant step by withdrawing the proposal and confirming the continuity of the H-4 EAD rule.

This development brings immense relief to numerous H-4 spouses who rely on their EADs for work, contributing to both their families and the economy.

Despite this positive turn, it is crucial to note that the rule remains provisional and is susceptible to modifications by future administrations or legal decisions.

Therefore, staying informed about the latest news and developments on this matter is imperative.

Conclusion

In summary, determining whether a spouse can work on an H-1B visa is not a straightforward yes or no.

It hinges on whether the spouse holds an H-4 visa and qualifies for an Employment Authorization Document (EAD).

An H-4 visa holder becomes eligible for an EAD if the H-1B visa holder has an approved I-140 or an AC21 extension.

With an EAD, the H-4 visa holder gains the ability to work in the United States without constraints.

The current status of the H-4 EAD rule is effective and has not been rescinded by the Biden administration.

However, it’s important to recognize that the rule is not permanent and may undergo changes in the future.

Hence, seeking advice from an immigration lawyer or an expert before making decisions regarding work and immigration status is advisable.

We trust this article has clarified the inquiry: Can a spouse work on an H-1B visa?

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