A Little Extra Marriage Never Hurt Anybody, Right?

On February 16, 2015, DHS announced that it would soon be permitting the H-4 spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status to apply and receive work authorization.  So far, at least, it appears that this program, which will become effective May 26, 2015, has not been impacted by the preliminary injunction issued in the U.S. District Court for the Southern District of Texas in Brownsville.

You mean I missed one?

On the whole, I believe this is a good thing.  It seems wrong to tell H-1B nonimmigrants that they can come work in this country, that their spouses can come with them, but that their spouses cannot work.  What does the U.S. Government expect their spouses to do?

Parkour, anyone?

That being said, the decision to extend work authorization does raise an interesting point.  First, could this potentially lead to an increase in marriage fraud?  Before, there was no real incentive to marry an H-1B nonimmigrant, aside from your traditional notions of love, etc.  Immigration benefits for the spouse were years away. Now, however, marriage to an H-1B nonimmigrant can lead directly to work authorization.  It is not exactly like a new spouse has hit the jackpot, as there is still no path towards a green card themselves, except potentially through the H-1B spouse if he or she seeks an employment-based immigrant visa.  But, it is, nonetheless, an incentive to marry.

This may prove particularly problematic in certain countries where arranged marriages are the norm. How can one distinguish that from a sham marriage? It’s quite possible that an individual can be approved for an H-1B (to start October 1), and then have several months to “shop” for a spouse, armed with the promise of status in the U.S. and an ability to work.

Hey, baby. I got an EAD with your name on it.

I’m sure I’m just being cynical, but the H-4 can then divorce the H-1B, marry a U.S. citizen, and adjust status. Obviously, fraud could be alleged upon diligent review of the case, but is USCIS really going to catch someone who is not obvious about it? I guess we shall see.

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