Dependents come in all shapes and sizes including spouses, children, and step-children but the word itself, “dependent"—what a label! So many negative connotations! Add the word “alien” and a spouse arriving in the US with their husband or wife may feel rightfully disheartened. Of course, calling a young child who is completely reliant on their parent a dependent makes more sense, yet treating both the same under immigration law does not make the most sense. Nonetheless, in this post we’ll examine key issues relating to both spouse and child dependents.
Since some dependent visa classifications allow for work authorization and others do not, in many situations the dependent spouse is in fact relying on the principal beneficiary for support because the dependent spouse will not be authorized to work in the US. Whether a dependent classification grants a spouse work authorization could be a key factor in a potential US employer’s choice of which classification to apply under.
Oftentimes when foreign workers are hired by a US company to work in the US, they are at an established level in their career. So too are their spouses, who must often make a decision to give up their career if they come to the US in a status that doesn’t allow them to work. While it’s understandable that Congress must protect the American worker and that therefore compromises have to be made to allow companies to hire foreign workers without that translating into two new workers coming to the US, for foreign nationals looking from the outside in, it may seem arbitrary that some visas allow spouses to work and others do not.
Which Dependent Visas Allow Spouses Ability to Work?
The chart below (here in PDF) details the most common dependent visa types and the work authorization and educational pursuits allowed by those who hold that classification. Where a dependent’s status allows for work authorization, the dependent must first apply for and be granted an Employment Authorization Document (EAD) with US Citizenship & Immigration Services (USCIS) before they are allowed to begin work in the US. The EAD comes as a card and is sometimes referred to as a “work card.”
Dependents are granted the same period of admission to the US as the principal beneficiary. If principals lose their status for any reason (such as leaving the employer/sponsor) the dependents also lose their status. If principals leave the US and no longer maintain the visa, the dependents lose the ability to keep their visa as well.
If the foreign national dependent is outside the US at the time of the petition on behalf of the principal beneficiary by an employer, there is no separate application for the dependent. With few exceptions, once the principal beneficiary’s visa petition is approved and the I-797 issued, the dependents just need to go to the US Embassy or Consulate with (or after) the principal spouse, show proof of their legal marriage, provide any other requested documentation including the I-797 approval notice issued for their spouse, and obtain their visa stamp.
There can be an advantage to being a spouse dependent. In the context of the L-2 and E dependent statuses, for example, the work authorization the spouse receives is more broad than the principal's: the principal may only work for the visa sponsor; however, the dependent spouse can work for anyone or even themselves once they receive their work card. Therefore, in some instances, foreign nationals may even chose a dependent status so they can have this freedom.
Dependent children can also accompany their principal parent on a dependent visa. With very limited exception (such as some J-1 dependent children) though, they are not able to apply for work authorization while in the US. The procedural steps for children to get the dependent visa are the same as the spouse and period of stays granted to the children dependents are also the same as for the spouse dependents. One thing, however, to keep in mind with children dependents is that the definition of “child” in US immigration law is a son or daughter under the age of twenty-one. Therefore, although it is very common for a family unit to stay together when the children are passed the age of twenty-one, the immigration law wouldn’t allow a parent to bring their twenty-two-year-old son or daughter as a dependent to the US. This can sometimes lead to devastating consequences that threaten to either separate families or prevent parents from coming to the US. Sometimes there are options for the adult child to get their own visa (such as a student visa) but that is not always possible.
This problem also appears when the family decides to stay in the US to get their Green Cards. When principal beneficiaries of immigrant petitions apply for their Green Card, the spouse and children may apply for their Green Cards at the same time. If, however, the process is not completed by the time the child “ages out” by turning twenty-one, they can be left without many options. (Please note, there is a provision of law called the Child Protection Status Act which can preserve a child’s age allowing them to get their Green Cards as dependents even after age twenty-one if certain steps were completed early enough and a calculation of factors is applied. The complications of the Child Protection Status Act, however, are too complex for this particular blog post.)
Time to Allow Work Authorization for All Dependent Spouses?
The regulations covering dependents may seem antiquated considering the way some family units function today. For the most part the law has not caught up with the current times—although if the recent extension of work authorization to some H-4 spouses is any indication, perhaps reform in other areas of the law covering dependents is not too much further off. For families where both spouses have their own careers, the best-case scenario is for both to obtain their own independent employment-based visas. If, however, this is not possible, because of the limits of some dependent visa-types, unfortunately hard choices may have to be made about whose career takes precedence.