H4 update

The Department of Homeland Security filed a status update May 22 with the DC Court of Appeals noting that it is awaiting final clearance on a rule to rescind work authorization for certain H-4 visa holders. A final rule is not expected to be issued until 2019. Last month, 130 members of Congress, led by Indian American Rep. Pramila Jayapal, urged DHS to continue the work authorization. (Jay Sharma/SaveH4EAD photo)

The Department of Homeland Security said it was awaiting final clearance on a rule to rescind work authorization for certain H-4 visa holders, in a status report filed May 22 with the DC Court of Appeals.

In February, DHS was granted an additional three months to respond to a lawsuit brought about by the organization Save Jobs USA, which contends that H-4 visa holders with work authorization – overwhelmingly immigrant women from India who are dependents of H-1B spouses – are taking jobs from American workers.

Less than 100,000 H-4 visa holders have been granted work authorization. EADs are granted to those whose spouses have been approved for a green card, but face delays of up to 70 years before attaining legal permanent residency.

In its status report, DHS noted that once the proposed draft has received final clearance from its agency, it will be sent to the Office of Management and Budget for review.

“As previously represented to the Court, DHS’s intent to proceed with publication of a (notice of proposed rulemaking) concerning the H-4 visa rule at issue in this case remains unchanged,” noted the agency, resolutely stating that it was not wavering on its decision to revoke work authorization.

Doug Rand, former assistant director for entrepreneurship in the Obama White House who helped implement the H-4 work authorization rule, told India-West that the public will not be able to see the language of the draft until it is entered in the Federal Register, where it must undergo a minimum 30-day public comment period. The draft rule will have to be cleared by The Office of Information and Regulatory Affairs – within the OMB – and the White House. Edits will have to incorporated before the draft is entered into the Federal Register.

Rand expects the proposed rule will be entered into the Federal Register in July. Following the public comment period, DHS is obligated to take all comments seriously – including those that oppose the rescission of the program – and provide its rationale in an attempt to fend off potential litigation from opponents who claim that ending the program was “an arbitrary and capricious decision.”

Rand, now the co-founder of the technology company Boundless Immigration - boundless.com - said he does not expect to see a final rule until next year. “No one with H-4 EAD will be affected immediately,” he asserted.

Jansi Kumar, co-founder of the online organization SaveH4EAD, told India-West that the group’s more than 6,000 members are gearing up to effectively oppose the rule once its announced. The motion to rescind work authorization has mobilized a large number of Indian women, who have contacted their elected officials in the House and Senate to save the H-4 EAD program.

Last month, 130 members of Congress, led by Indian American Rep. Pramila Jayapal, D-Washington, sent a letter to DHS Secretary Kirstjen Nielsen, urging the agency to continue work authorization for certain H-4 visa holders (see India-West story here).

Despite the uncertainty of the program, people are continuing to apply for EAD and also for renewals, said Kumar, noting that those applying for a renewal can use the premium processing program – at an extra cost of $1,000 – to avoid delays in the approval process.

But H-4 entrepreneurs are waiting to set up their businesses, not knowing whether they will be able to continue their operations over the long-term, noted Kumar.

“We are waiting and waiting, fighting and hoping,” Kumar told India-West.

FWD.us, a pro-immigration organization supported by leaders in the tech community, issued a statement last March after DHS was granted an abeyance. “There is no evidence to show that the H-4 rule harms American workers in any way. DHS considered economic impact when they issued the rule and argued there would be minimal impact to the labor market. The calls of economic calamity are all smoke and no fire – or evidence, or fact-based.”

“The Administration should take action immediately to keep this rule in place, and should begin working with Congress to pass legislation like H.R. 392, the ‘Fairness for High-Skilled Immigrants Act,’ to address the decades-long green card backlog,” said the organization.

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