Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
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Dear Sophie:
My spouse’s startup is transferring her to the U.S. to help set up an office there. Will I be able to go with her and work in the U.S.? How long will it take for me to get a work permit? How long will we be able to stay?
— Hopeful in Hyderabad
Dear Hopeful:
Congratulations on starting an exciting new adventure with your family. U.S. immigration law allows visa holders to bring their spouse and dependent children with them to the U.S. and you can check out this podcast on the topic. Dependent children are defined as children who are under the age of 21 and unmarried. Whether or not the spouse can get a work permit, which is called an Employment Authorization Document (EAD), depends on which dependent visa the spouse receives.
Based on your description, it sounds like your spouse will be coming to the U.S. on an L-1 visa for intracompany transferees. If that’s the case, you will be eligible for an L-2 dependent visa. The good news is that L-2 visa holders are eligible to apply for a work permit.
Given the ongoing COVID-19 pandemic, all U.S. embassies and consulates remain closed to routine visa and green card processing. When consular processing and travel begin again, you and your spouse should schedule your visa interview together to streamline the process. If that’s not possible, you can schedule your visa interview later.
Once you arrive in the U.S., you can apply for employment authorization by submitting Form I-765 to U.S. Citizenship and Immigration Services (USCIS). You will need to provide evidence of your wife’s and your immigration status, a marriage certificate and passport photos. It can take anywhere from one to 10 months to receive a work permit.
Unfortunately, there’s no way to speed up the work authorization process, other than to file an expedite request for extreme financial hardship to your family or a potential employer. However, doing that might prompt immigration officials to look at that as an indication you and your spouse may become public charges. Under the expanded public charge rule, which has been in effect since February, immigration officials will determine whether a foreign national is dependent on government benefits or is at risk of becoming dependent. Both are grounds for immigration officials to deny a visa, visa renewal or green card.
In addition to the L-2 visa, dependent spouses holding E-2, E-3 and J-2 visas are also eligible for work permits. H-4 visa holders, who are the spouses of H-1B visa holders, can get a work permit, too, but only if immigration officials have approved the principal H-1B visa holder’s green card petition or granted an H-1B extension beyond six years under the portability rule.
The H-4 EAD program was created in 2015 through an executive order issued by the Obama administration. The Trump administration has been threatening to end it since entering office. A proposed rule eliminating the program was expected this spring at the earliest, but so far nothing has been published.
In ongoing court proceedings, the U.S. Department of Homeland Security, which oversees USCIS, appeared to do an about-face when it recently opposed a motion from Save Jobs USA to stop issuing or renewing work permits to H-4 visa holders. Save Jobs USA, a group whose members are former tech workers displaced by H-1B professionals, sued the federal government to end the H-4 EAD program shortly after it was put in place. In filing its opposition to the motion, Homeland Security said Save Jobs failed to show that allowing H-1B spouses to work causes “serious” economic harm to U.S. workers.
Although work permits for H-4 visa holders remain possible, we urge H-4 visa holders and their employers to find a backup option, such as entering those workers in the H-1B lottery to allow them to continue working in the U.S.
Individuals holding other dependent visas, such as the O-3 or TD, cannot work. However, all dependent visa holders can volunteer, get a driver’s license, a tax ID number (which is different from a Social Security number), open a bank or credit card account, attend school or travel outside the U.S. A great way to volunteer by contributing technical skills is to apply for CrowdDoing.
Your dependent visa will be valid for as long as your spouse’s visa is. If your wife is establishing a new office in the U.S. under an L-1, your initial visa will be valid for one year. After that the visa can be renewed every two years until you reach seven years, which is the maximum stay under an L-1.
Like the H-1B, the L-1 is a dual intent visa, which means you and your wife can apply for a green card while you’re in the U.S. If the goal of you and your wife is to remain permanently in the U.S., you both should file for a green card as soon as possible, potentially through her company in the EB-1C category.
Citizens of India face decades-long waits for many green cards. And the L-1 and L-2 visas cannot be extended much beyond the seven-year maximum. If you have applied for a green card, but do not receive it before the seventh year ends, your wife can file for an L-1 extension by “recapturing” unused time in the U.S.
Only time physically spent inside the U.S. counts toward the maximum seven-year stay under L-1 status. So, days spent outside the U.S. for work or vacation can be “recaptured” and added back to the total maximum period of stay. If, for instance, your wife spent 70 days on business trips to India and 98 days on vacation abroad during the past seven years, she could file an extension petition requesting that the 168 full days spent outside the U.S. be added back to the maximum stay.
You or your wife would need to find an alternative visa option if you want to remain in the U.S. and work. Otherwise, you would have to leave the U.S. while the adjustment of status for your green card is pending and you would have to opt for consular processing of your green card.
Thanks for reaching out. Let me know if you have any other questions.
Be well and enjoy your adventure!
Sophie
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!