The Recent Popularity of NIW for H-1B Holders

With the recent USCIS announcement regarding employment authorization for the H-4 spouses of H-1B holders with approved I-140’s, our office has received numerous inquiries regarding the best way to apply for I-140.   In this context, one of the most popular categories for I-140 is the National Interest Waiver (“NIW”).

There are several unique advantages when an H-1B holder applies for an I-140 based NIW:

  1. For an NIW, no employer sponsorship is needed. Thus, even if an employer has not agreed to sponsor a PERM Labor Certification or any other type of green card, an H-1B holder can still independently apply for an NIW to receive the employment authorization for his or her spouse.
  1. NIW I-140 adjudication times are usually under 6 months, which means that an H-4 spouse can usually apply for his or her employment authorization within 6 months of submitting the NIW I-140.
  1. Even if an employer has agreed to sponsor under PERM, many of our clients still elect to petition for an NIW. With the PERM process taking 8 months or even longer than a year if an Audit is received, many clients concurrently petition for an NIW to expedite the spouse’s ability to receive work authorization.  (Concurrent filing for both PERM and an NIW is allowed since they are considered separate categories)
  1. The NIW I-140 approval not only grants the H-4 spouse the ability to work, but it also provides a separate, independent basis for a green card in case the H-1B sponsor wants to halt the green card sponsorship process.

Overall, applying now for a National Interest Waiver is a viable and speedy option to give an H-4 spouse the ability to work in the United States.  For H-1B holders who are interested in petitioning for NIW, we recommend that they start the process soon so that the H-4 spouse can apply for employment authorization quickly once the USCIS begins accepting Form I-765, Application for Employment Authorization for H-4 holders on May 26, 2015.

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