USCIS Acts to Eliminate Employment Disruption for Professional Workers

02 March 2015 Labor & Employment Law Perspectives Blog

Employers who seek to reduce disincentives that currently encourage H-1B non-immigrant employees to abandon adjustment to lawful permanent residence status will benefit from a new employment authorization rule announced on February 24, 2015, by U.S. Citizenship & Immigration Services (USCIS). The new rule, effective May 26, 2015, will allow the spouses of H-1B employees to work in the United States during the period in which the H-1B worker awaits adjustment to permanent resident status. H-1B employees are those foreign national specialty occupation temporary workers who fulfill professional-level job duties in employment positions that mandate no less than a baccalaureate-level degree in education or equivalent work experience. The spouses of H-1B visa holders are derivative beneficiaries of their spouse’s H-1B status and are granted H-4 status during the period of their spouse’s temporary H-1B employment.

Prior to the rule change, employers were encountering resistance from their H-1B workers in regards to continued employment during the pendency of the workers’ adjustment to permanent residence status. Such delays can be as extensive as 10 years for professionals from India and have fostered an impatient H-1B workforce. This frustration is compounded by the fact that such H-1B workers are merely awaiting adjustment to permanent residence status, following a certification from the U.S. Department of Labor that confirms the unavailability of U.S. workers to fulfill the H-1B worker’s job duties. In spite of the U.S. labor force’s documented need for such degreed professionals, years of delay typically await such H-1B workers’ adjustment to permanent residence status. Accordingly, many H-1B workers have been abandoning the lengthy adjustment process and leaving the United States, given the additional economic hardships that follow from their H-4 spouse’s inability to contribute to household income for an indefinite number of years.

The USCIS announcement took note that the rule change “will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience in the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society . . . the change should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United Sates while seeking lawful permanent residence status, which will minimize disruptions to U.S. businesses employing them.”

Despite the broad intentions, not all H-4 beneficiaries will benefit from the rule. As of May 26, 2015, the new rule will authorize H-4 spouses to receive employment authorization if their H-1B spouse is the beneficiary of an approved I-140 employer-based immigrant visa petition or if the H-1B spouse has a pending labor certification before the U.S. Department of Labor that evidences the unavailability of a U.S. worker to fulfill the H-1B employee’s job duties.

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