What Happens if the H-4 EAD Program is Terminated?

Phyllis Martinsen
on
March 15, 2018
What Happens if the H-4 EAD Program is Terminated?

Available since May 26, 2015, the H-4 Employment Authorization Document (EAD) program has been a huge benefit to many eligible spouses of H-1B visa holders. However, after being available for less than three years, the Trump administration announced it will review and possibly terminate the H-4 EAD program. In this article, we will take a closer look at the eligibility criteria for the H-4 EAD program, as well as its benefits, and possible alternatives.

Who is Currently Eligible for the H-4 EAD Program?

To qualify for the H-4 EAD program, the H-4 dependent spouse of an H-1B visa holder can file Form I-765 to apply for work authorization, if their H-1B spouse:

“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).”

What are the Benefits of the H-4 EAD Program, and Why is it So Important?

One central reason for the creation of the H-4 EAD program was not only to give extra incentive to skilled workers to apply for an H-1B visa, but also to retain those workers and encourage them to pursue an employment-based Green Card.

For many H-1B employees, obtaining a Green Card sponsored by their employer is the ultimate goal when coming to the U.S. Vice versa, most employers put a lot of effort into making sure there is a pathway to Lawful Permanent Resident (LPR) status for their employees. However, the spouse’s ability to work can play a central role in an H-1B visa holder’s decision to stay in the U.S. to obtain a Green Card.

Based on a worker’s nationality and current processing times, it can take up to a decade to obtain LPR status. During this period, the H-1B visa gets extended until a Green Card is available. Before the H-4 EAD program, an accompanying spouse in H-4 status was not able to obtain an employment authorization during this time.

Based on the foreign national’s nationality and country of birth, the time frame between being issued an approved I-140 and eventually obtaining a Green Card can be anywhere between a few months to many years. With long processing times and unpredictable priority dates, most H-1B visa holders are aware it might take a long time for them to obtain their Green Cards.

As exciting as relocating to the United States and potentially achieving economic improvement may sound, it can be a lot to ask of a spouse to leave their family and friends behind and move to a foreign country with a different culture and language, in order for their partner to pursue their career abroad. Abandoning their own career and not having any personal income for the next 3, 5 or possibly 15 years also adds a lot of anxiety and concern to the situation.

What Could Happen if the H-4 EAD Program is Terminated

Terminating the H-4 EAD program would certainly have an effect on attracting qualified workers and, furthermore, retaining them. In today’s society, both men and women are career-driven. A lot of times, both parents are working, either full- or part-time, for both career and financial reasons. Eliminating a spouse’s ability to obtain work authorization will make it impossible for many skilled workers to enter and stay in the U.S. on an H-1B visa.

Frankly, the H-4 EAD program has only been around since 2015, and before the program, H-4 dependents were unable to obtain work authorization through their spouse. So essentially, things would go back to how they used to be. However, times have changed and foreign employees considering moving to the U.S. on any employment-based visa are facing a lot of uncertainty. Terminating the H-4 EAD program could have significant effects on the H-1B visa applicant pool and their willingness and ability to remain in the U.S., long term.

What Alternatives Are Available for Those Impacted?

If the accompanying spouse has a qualifying Bachelor’s or Master’s degree, there certainly is the option to apply for an H-1B visa for themselves. Depending on the degree, field, and qualification, this may or may not be a reasonable alternative.

In addition, an H-4 spouse might be eligible for other types of work visas, such as an L visa, E visa, O visa, or even a TN visa. Just like the H-1B visa, eligibility for those visa types depends on many different factors, and might not be an option for everyone.

Another option to consider is enrolling in a Bachelor’s or Master’s degree program in the U.S., on an F-1 visa. Although this might be a counterintuitive alternative, obtaining a U.S. degree could open up a lot of opportunities towards a work visa, such as the Optional Practical Training (OPT) and Curricular Practical Training (CPT) EAD programs.

As the decision on what will happen to the H-4 EAD program is expected to be made in June 2018, we will continue to monitor any news about the program and update accordingly.

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.us.

Disclaimer: This content is not a form of legal advice and should not be treated as a substitute for legal counsel. Bridge US encourages readers to discuss any and all immigration-related concerns with an attorney.