U.S. Department of Homeland Security (DHS) Proposed Regulatory Changes Allowing Spouses of H-1B Employees, Present in the U.S. in H-4 Status, to Apply for Employment Authorization under Certain Circumstances

If you have an H-1B employee, you probably know that a spouse of such employee present in the U.S. in H-4 status is not eligible to work. This could change
for some H-4 spouses if DHS adopts its proposed regulatory amendment. This amendment would allow H-4 spouses to apply for an Employment Authorization
Document in the following circumstances:

  1. When the H-1B employee is a beneficiary of the approved I-140 Immigrant Petition; or
  2. When the H-1B employee is working in the U.S. pursuant to the H-1B extension petition, filed under The American Competitiveness in the 21st Century Act (AC21), which allows extension of H-1B status beyond the six-year maximum period.*
    * Under AC21, H-1B status can be extended beyond six years if:

    1. An Application for Labor Certification on behalf of the H-1B employee was filed at least 365 days prior to the employee’s six-year anniversary in H-1B
      status; or
    2. An I-140 Immigrant Petition was filed at least 365 days prior the employee’s six-year anniversary in H-1B status.

This amendment (if passed) could help employers retain a higher percentage of H-1B employees who they have sponsored for a green card under the EB-3
category as professionals and who are destined to wait for their immigrant visas for years. Many H-1B employees in these circumstances reach a point when
they are tired of waiting for their immigrant visas and dealing with hardships caused by their spouse’s inability to work. As a result, they start seeking
opportunities with other employers who are willing to sponsor them for a green card under the EB-2 category, which has a shorter waiting period for
immigrant visas or no waiting period at all. When H-4 spouses are able to work in the U.S., hopefully, waiting for immigrant visas would be less burdensome
for H-1B employees and they would be more committed to continue working for employers, who have already sponsored them for a green card.

If this proposed amendment becomes a law, employers would be able to help alleviate hardships on H-1B employees, caused by their spouses’ inability to work
in the U.S., by initiating the green card application sponsorship for such employees as soon as the circumstances allow.

Stay tuned for an update on this proposed amendment.


Immigrant and Nonimmigrant Visa/Status Options for Foreign Entrepreneurs

If you are a foreign entrepreneur seeking to start a business in the United States, you should consider all options available under the U.S. immigration law and choose the option that would fit your personal circumstances and help you accomplish your goals.  You may be able to immigrate to the United States by investing $1,000,000 USD (or $500,000 for Targeted Employment areas) in the U.S. economy.  Such investment may allow you and your eligible family members to obtain Lawful Permanent Residence in the U.S. pursuant to the employment-based fifth preference (EB-5) category. 

If the EB-5 category is not an option for you, there are some nonimmigrant status options you should consider.  These options include Treaty Trader (E-1), Treaty Investor (E-2), L-1A, and H-1B status.  To qualify for either Treaty Trader (E-1) or Treaty Investor (E-2) status, you must be a national of the country with which the United States maintains a Treaty of Commerce and Navigation.   A list of such countries is available at: http://travel.state.gov/visa/fees/fees_3726.html.

If your home country does not maintain a Treaty of Commerce and Navigation with the United States or if E status would not help you accomplish your goals, you may consider L-1A status.  To qualify for L-1A status, you should have been employed in a specialized knowledge, managerial or executive position with a qualifying organization outside the United State for at least one year within the last three years.  Your foreign employer may organize a subsidiary in the United States and hire you to manage the operations of the U.S. subsidiary.  The company where you have gained one year of qualifying experience outside the United States must continue its operations while you are working in the United States pursuant to L-1A status.  The success of a subsequent L-1A petition on your behalf will depend on the success of the U.S. company operations and its growth.  

If you are not eligible for E-1, E-2 or L-1A status, you may consider H-1B employment in the United States.  If you can avoid being the majority owner of a U.S. company that will sponsor you for H-1B employment, it would help your case.  If being the majority owner of the U.S. company is unavoidable, the company should have an independent Board of Directors with the legal authority to control the terms of your employment.  Your employer-employee relationship with the U.S. company will be highly scrutinized by the US Citizenship and Immigration Services (CIS). 

Since H-1B visas are not currently available, the earliest date when a new H-1B petition may be filed is April 1, 2014; and the earliest date when your H-1B employment may begin is October 1, 2014.  If you decide to pursue the H-1B option, you should start preparations now, so the H-1B petition is ready for filing with CIS no later than April 1, 2014, to increase your chances of receiving an H-1B visa (the demand for H-1B visas may exceed a yearly quota as early as April 1).