If H1B visa holders lose jobs, can spouses continue to work? Expert take on H4 work visa ruling
2 min read 03 Apr 2023, 10:19 PM ISTImmigration expert Rajiv S. Khanna stated regulations aim to provide greater opportunities for skilled foreign workers and their families to settle and contribute to the US economy.
PremiumA US Judge, last week, ruled that spouses of H-1B visa holders can work in the United States, rejecting Save Jobs USA's lawsuit to dismiss an Obama-era regulation. US District Judge Tanya Chutkan noted that “Congress has expressly empowered the US Government to authorize employment as a permissible condition of an H-4's stay in the United States."
Rajiv S. Khanna, managing attorney at Immigration.com, the Law Offices of Rajiv S. Khanna, PC, has further elaborated on the topic, answering some crucial questions such as the impact on H-4 visa holder's job if the H-1B visa holder loses their job, and whether the ruling influences Green Card status.
What influenced this change?
The US government realized that many highly skilled workers who came to work in the US on H-1B visas faced a long wait to obtain a green card. During this time, their dependents, H-4 visa holders, who were also often highly qualified, were not allowed to work. This made it difficult for these families to settle in the US, and many chose to leave. To address this, the right to work was created.
The regulation was also influenced by the fact that the spouses of L-1 visa holders (L-2 visa holders) were already allowed to work in the US. The regulation thus aimed to provide greater opportunities for the spouses of H-1B, thus incentivizing the H-1B workers to continue to contribute to the US economy.
Even though H-4 holders are allowed to work, is there any legal difficulty that they might face?
There is no legal difficulty as such, but the government allowed H-4 visa holders to apply for an employment authorization document (EAD) only if the H-1B holder's green card application was at a certain stage of processing. In other words, the EAD is only allowed if they are serious about staying in the US.
In case the H1B visa holder is laid off, what happens to the spouse's job?
The H4 EAD holder's ability to work is dependent on the status of their spouse who holds an H-1B visa. If the H-1B holder loses their status, the H-4 EAD holder will also lose their right to work. However, if the H-1B holder applies for another H1B visa within 60 days of losing their job, the EAD continues uninterrupted. Essentially, the H4 and H1B visa holders are interdependent, and any changes to the primary visa holder's status will also affect the dependent visa holder.
In case an H4 visa holder (if they want to work in the US) finds a sponsor for H1B, should they change their visa status or wait for green cards?
Spouses on H4 visas can apply for an H1B visa independently without affecting their current status. They can also apply for their own employment-based green card while still holding H-4 status. Multiple green cards for a couple provide an added level of security.
Note that if the H-4 holders obtain an H-1B status or become a student with work authorization, they can still go back to H-4 status and apply for an employment authorization document in the future.
Does the new ruling affect the green card process?
No, it doesn't affect the green card process. It only benefits H-4 visa holders whose spouses are on H-1B visas by allowing them to seek employment in the US.
In simple words, the H-4 EAD regulation incentivizes the H-1B holders to stay in the US by providing opportunities for their spouses to work in the US.
