The spouses of H-1B visa holders face losing their work permits. If you’re one of the nearly 180,000 individuals in this situation or have an employee in this situation, what should you do?

The Alcorn Immigration Law team has been fielding this question from both the working spouses of H-1B visa holders, who are given H-4 visas and their employers. Although work permits are still being issued to H-4 visa holders, we recommend exploring alternatives now.

We typically explore the following options for working H-4 visa holders.

H-1B Visa

Some H-4 workers could qualify for an H-1B visa in their own right. If considering this option, act now. The H-1B lottery begins on April 2.

H-1B1 Visa

If the H-4 worker is a Chilean or Singaporean national, she or he may qualify for an H-1B1 specialty occupation visa, which is an H-1B visa earmarked for citizens of Chile and Singapore. Thanks to special treaties the U.S. has with Chile and Singapore, professionals from these countries can receive H-1B1 visas on a fast-track basis. Each year, 1,400 H-1B1 visas are reserved for Chileans and 5,400 are reserved for Singaporeans. Rarely are those visas completely exhausted.

E-3 Visa

The E-3 visa allows Australian nationals to live and work in the U.S. at a “specialty occupation” that requires specialized theoretical or practical knowledge. In addition, E-3 visas require the petitioning employer to file a Labor Condition Application with the U.S. Department of Labor, as is required with H-1B petitions.

A maximum of 10,500 E-3 visas is available each year. E-3 visas may be extended every two years as long as the employer and the E-3 visa holder’s conditions of employment remain the same.

L-1 Visas

The L-1 visa would require the candidate to be apart from her or his family for at least one year. An employer with an office outside the U.S. could transfer a worker from the U.S. to the office overseas.

After working in that overseas office for 12 months or more, the employee could be eligible for an L-1A or an L-1B visa. The L-1A visa enables a U.S. employer to transfer an executive or manager from a foreign office to an existing U.S. office after that employee works there for at least 12 months.

Similarly, the L-1B visa enables a U.S. employer to transfer an employee with specialized knowledge from a foreign office to an existing office in the U.S. after that employee works for the company for 12 months or more.

Moreover, no annual quotas exist for L-1 visas, and L-1 visa holders may petition for permanent residency (a green card).

O-1A Visa

Does the employee have “extraordinary ability” in the sciences, education, or business? If so, she or he might qualify for an O-1A visa to temporarily live and work in the U.S.

However, the bar for qualifying for an O-1A visa is higher than for an H-1B. An employer must file a petition that either the candidate has received a major, internationally-recognized award or meets other criteria.

Currently, USCIS does not cap the number of O visas that are available each year, unlike other temporary visas. Moreover, O-1A visas do not require the petitioning employer to file a Labor Condition Application with the U.S. Department of Labor, a requirement for H-1B petitions.

The initial O-1 petition can be approved for up to three years. O-1A visa holders may be eligible for indefinite extensions if the O-1A visa holder engages in long-term assignments or projects. O-1A visa holder may also simultaneously apply for a green card.

TN Visa

Professionals from Canada and Mexico may come to the U.S. to work temporarily under a TN (Treaty National) visa. This visa emerged from the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships between Canada, Mexico, and the U.S.

TN visas have fewer drawbacks than H-1B visas. TN visas:

• Do not have an annual quota.
• Allow for unlimited extensions as long as the employer and conditions of employment remain the same.
• Have no prevailing wage requirement.
• Do not require a U.S. Citizenship and Immigration Services petition.

TN visas are limited to 63 professions listed in NAFTA. However, most of these jobs overlap with H-1B specialty occupations.

F-1 Visa

Could the H-4 worker enroll in a master’s or higher degree program? An F-1 visa allows the holder to enter the U.S. as a full-time student at an accredited college or university.

Some graduate programs require Curricular Practical Training (CPT), which is work experience in the student’s field of study. Students may participate in practical training on a part-time or full-time basis. Full-time F-1 students enrolled in graduate programs that do not require immediate participation in CPT must wait one academic year.

Timing

The time to act is now. Last week, the Department of Homeland Security (DHS), which oversees U.S. Citizenship and Immigration Services (USCIS), notified a federal court of appeals that it will issue a formal notice to rescind by the end of this month the regulation allowing H-4 visa holders to obtain a work permit.

The DHS update stemmed from a lawsuit filed by Save Jobs USA shortly after the H-4 rule went into effect. For an H-4 visa holder to be eligible for a work permit—or Employment Authorization Document (EAD)—the H-1B spouse must be in the process of obtaining a green card.  Save Jobs USA, a group whose members are former information technology workers who were replaced by H-1B visa holders sought to block the DHS from issuing the work permits.

Once DHS publishes its proposal to rescind the H-4 EAD rule in the Federal Register, the public will have at least 30 days to comment. Following that public comment period, DHS could make changes to the rule based on public input and would publish the final rule in the Federal Register and the effective date.

We Can Help

The Alcorn Immigration Law team continues to closely monitor this and all other immigration policy developments. Contact us for a consultation to determine the best path forward for you, your company, your employees, or your family.