Can My Spouse Work if I Have An H-1B Visa?
By Amar Ali, Immigration Solicitor
If you a temporary migrant worker in the United States, and you have your spouse/partner with you, it may be they decide they would also like to find work. As is the case in all countries, it is important to first check the conditions of your visa, as even an unintended breach may cause you to lose your legal immigration status. In this article, we will focus on the United States H-1B visa, and discuss whether it is possible for the spouse or partner of the main visa holder to work.
What Is The H-1B Visa?
The H-1B visa, also described as a 'person in speciality occupation' visa, enables citizens of other countries to work in the United States in a specialised occupation. It is a temporary (or nonimmigrant) visa, however, it is possible to use this as a step towards achieving a green card. Applicants need to have a degree (or higher) and occupation in a technical or specialist area, such as IT, finance, journalism, research, law, arts, accounting, architecture, engineering, mathematics, science, or medicine.
The US Department of State describes this visa as, "To work in a specialty occupation. Requires a higher education degree or its equivalent. Includes fashion models of distinguished merit and ability and government-to-government research and development, or co-production projects administered by the Department of Defense".
Those with an H-1B visa are typically permitted to stay for three years, and this is extendable by a further three years.
The number of H-1B visas issued each year is capped; with the amount for 2021 being 65,000 (the regular cap), and an additional 20,000 for those with an advanced degree. Because the number of visas is so limited, they are granted on a lottery basis. As such, even if you are eligible and you submit an application, there is no guarantee that you will be able to secure an H-1B visa.
What Are The Eligibility Criteria For An H-1B Visa?
The US Citizenship and Immigration Service define the following eligibility criteria for the H-1B visa:
- Your occupation must involve the theoretical and practical application of a body of highly specialised knowledge.
- You must hold a US bachelor's or higher degree required by the specialty occupation from an accredited college or university or a foreign degree that is the equivalent to a US bachelor's or higher degree required by the specialty occupation from an accredited college or university
- Hold an unrestricted state license, registration, or certification that authorises you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
- Have education, specialised training, and/or progressively responsible experience that is equivalent to the completion of a US bachelor's or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
This last requirement means that if you do not have a degree, but you have work experience which can be assessed as being equivalent to a degree or higher, then you may also be eligible.
Can I Bring My Partner/Spouse With Me To The US On An H-1B Visa?
Yes, the US immigration rules state that H-1B temporary visa holders are allowed to bring their immediate family members (i.e. your partner/spouse and any children under the age of 21) to the US with them. To do so, they will need to apply under the H-4 visa category as dependent family members. The H-4 visa is essentially linked to the H-1B visa, meaning that they can remain in the US legally as long as the H-1B visa holder has legal status.
H-4 visa holders are also able to study, apply for a driver's license, and open a bank account in the United States.
Can My Spouse Or Partner Work In The US While I Am On An H-1B Visa?
The US immigration service states, "Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status".
This confirms that it is possible for a spouse or partner of an H-1B visa holder who themselves hold an H-4 visa to apply to work in the United States. The rules state this is possible as long as the H-1B visa holder, "Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21)".
To apply, they first need to complete Form I-765 and provide supporting evidence of:
- Your H-4 status
- A government-issued identification document with photo
- Your relationship to the H-1B nonimmigrant
- Your basis for eligibility
- Photos for card production
To prove your eligibility, you can provide a copy of Form-I-797 showing approval of their Form I-140, Immigrant Petition for Alien Worker. If you cannot provide a copy of this approval, there are other ways to prove your eligibility. It is advisable that you contact an immigration lawyer who will be able to advise you which documents you can provide to support your application.
Wrapping Up
It is entirely possible for a spouse or partner of an H-1B visa holder to work in the United States, but this is not an automatic right. They will need to apply for approval and then wait to be given the green light before starting work.
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