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Which Categories of Employment Based Visas Allow Spouses to Work

July 07, 2021
Pawel Boruch

There are many types of employment-based visas. These visas allow principal applicant to legally work in the United States, with some exceptions only for the petitioning employer. The H-1B, H-1B1 and E-3 visas allow a non-citizen to be employed in “specialty occupation” position, which requires attainment of at least bachelor’ degree in a specific field. The L-1 visas allow multinational companies to temporarily transfer some employees to their affiliated entities in the United States. E-1/E-2 Treaty traders and investors legally work while actively investing in the U.S. business or being involved in in an international trade between the U.S. and other treaty country. Non-citizens with extraordinary ability in sciences, arts, education, business, or athletics are authorized to be employed by petitioning employer or agency in O-1/2 status, similar with P-1/2/3 artists, athletes, and entertainers. There is also a special R-1 visa for religious workers, who serve at a nonprofit religious organization, or nonprofit organization affiliated with a religious organization. Lastly, there is a TN visa for Canadian and Mexican citizens who are working in one of the professional occupations listed in a treaty between the U.S. and Canada and Mexico.

But what about families of those workers? Are they allowed to work or study in the United States? The answer is, as always: “it depends.” In general, spouses of H-1B visa holders (H-4 status) are not eligible to request employment authorization unless the H-1B primary applicant meets some additional requirements. Specifically, the H-1B nonimmigrant must be already in the process of seeking employment-based lawful permanent resident (LPR) status. H-4 dependent spouses may apply for employment authorization if the primary H-1B nonimmigrant:

  • Is the principal beneficiary of an approved Form I-140 Immigrant Petition;

OR

  • Has been granted H-1B status under provisions of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Based on the AC21 the H-1B nonimmigrants seeking lawful permanent residence is eligible to work and stay in the United States beyond the six-year limit on their H-1B status as long as the labor certification has been pending for at least a year or the I-140 has been approved in a backlogged immigration category.

As to the other employment-based nonimmigrant visas, spouses of principal workers on L-1, E-1, E-2, E-3 status are eligible to apply for and receive employment authorization. Unfortunately, there are no provisions allowing family members of the principal workers on O-1/2, P-1/2/3, R-1, or TN status to receive employment authorization. In order to be eligible to accept employment they would have to secure proper employment-based visa for themselves.

For those eligible for employment authorization (certain H-4, L-2, dependents of E visa holders), it is necessary to apply for an Employment Authorization Document (EAD) with USCIS to accept employment. With an approved EAD they can work for any employer and in any position because their work authorization is not tied to any specific employer.

The good news is that all dependents holding any of the above-mentioned categories can engage in part-time or full-time study without any prior authorization from USCIS.

Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you have any additional questions about your employment eligibility.

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