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Can Spouses of US Visa Holders Work In The USA?

I hate to sound 'lawyerly,' but I'm afraid the answer is, "it depends."

Two individuals with the same qualifications may find that one can work in the USA, whereas the other cannot. Let's call these two individuals Maria and Anna. They are close friends, having attended the same university, having studied the same subject, and holding similar mid-management roles in their companies. Their respective husbands have now been hired by the same US company to work in the USA. Both women will accompany their husbands on derivative non-immigrant visas; Maria will enter the USA on an L-2 visa, and Anna on an H-4.

The result? While Maria will be able to work in the USA and enjoy career progression, Anna is not permitted to work at all. How can two people with nearly identical backgrounds face such different prospects when it comes to employment authorisation in the USA?

What is a derivative visa?

When an individual obtains a visa for the USA, it may be possible for his/her spouse to accompany the person during their stay in the United States on a derivative visa. For instance, when a person obtains an L-1 (Intra-Company Transferee) visa, his spouse can obtain an L-2 visa (as Maria will); the dependents of an H-1B (Skilled Worker) visa can obtain H-4 visas (as Anna will).

In our example, the issuance, end date, and the terms of the wife's derivative visa will be dictated by the visa held by her husband. Each wife can only hold a derivative visa once her husband's work visa is issued, and the permitted stay under the visa will automatically end at the same time as her husband's.

Why can some derivative visa holders work while others cannot?

Some derivate visas permit employment, while others do not.

  • The L-2 visa, the derivative visa of the L-1 Intra-Company Transferee visa, allows employment for spouses. It is under this provision that Maria will be able to work in the USA while accompanying her husband. Before a spouse can lawfully work in the USA, (s)he must first apply for and obtain an Employment Authorisation Document from the US Citizenship and Immigration Services (USCIS). Spouses are also able to study in the USA without obtaining a student visa.
  • The H-4 visa, the derivative visa of the H-1B Skilled Worker visa, does not allow spousal employment, although it permits spouses to study in the USA without obtaining a student visa. It is due to this provision that Anna, unlike Maria, is unable to work during her stay in the USA. Anna is, of course, free to qualify for a US work visa in her own right (for example, by meeting the requirements of the H-1B visa herself).
  • The derivative visa of the E-2 Treaty Investor visa allows spousal employment after the spouse obtains an Employment Authorisation Document from USCIS. Additionally, the spouse is permitted to study without obtaining a student visa.

Expanding work authorisation eligibility for spousal derivative visa holders

Adjusting to a foreign country is difficult enough. The process of adapting to a new life in the USA is further complicated when the spouse of the work visa holder is unable to work, potentially leading to social and cultural isolation and a host of other issues.

The recently held Council on Contemporary Families' Conference placed the spotlight on immigrant families and unveiled some unique findings regarding employment-ineligible spouses of US visa holders. Sociologist Pallavi Banerjee of Vanderbilt University presented findings from a study of Indian couples where one spouse was working pursuant to anon-immigrant visa, and the other was not permitted to work. The study found that the derivative visa holder's inability to work could lead to situations of social invisibility and dependency. While both men and women experienced adverse effects, men who were unable to work due to visa regulations were particularly affected due to cultural norms mandating that they be the breadwinner. This led to feelings of inadequacy and isolation.

If the United States wishes to attract highly educated foreign workers, expanding employment opportunities for their spouses will doubtlessly have a positive impact. Draft US immigration proposals are expected to be revealed shortly and it is hoped that expanded employment rights for derivative visa holders are amongst the suggested changes.

The American Immigration Law Office is based in London, UK, offering legal assistance with the full range of immigrant and non-immigrant US work visas. Contact the firm's US immigration lawyer in London to discuss your case today!