More than 100,000 H-4 visa holders continue to be in imminent danger of losing their hard-fought-for ability to work in the U.S., as the Trump administration considers whether it will respond by the deadline of Jan. 2 to a lawsuit which seeks to rescind their employment authorization.
The administration has asked for several abeyances as it considers its position on the suit, initiated in 2016 by Save Jobs USA. In its lawsuit, the organization contends that allowing H-4 visa holders to work creates unemployment for American workers.
“There is, of course, no evidence that the H-4 EAD program depresses wages or employment opportunities for U.S. workers,” said prominent immigration attorney Sheela Murthy in a blog post. “But, the Administration has maintained that, contrary to the reams of studies that show the positive impact foreign national workers have on the U.S. economy, their presence is a threat to American workers,” said the Indian American attorney.
H-4 visas are allotted to the spouses of H-1B visa holders. The vast majority of H-4 visa holders are Indian women, many of whom have skills comparable to their spouses.
In May 2015, former President Barack Obama authorized work permits for H-4 visa holders whose spouses were on track for permanent residency. From October 2015 to September 2016, 41,526 people received authorization to work under the program. Complete figures for the most recent fiscal year, which ended in September, are not yet available, as reported by the San Francisco Chronicle.
Separately, The National Law Review reported Nov. 21 that the Trump administration is circulation a draft regulation to end the H-4 EAD program. The publication noted that a new regulation would have to go the Notice-and-Comment period – to comply with the Administrative Procedures Act – before it is adopted, likely sometime in 2018.
In April, three months after he took office, Trump issued an executive order – “Buy American and Hire American” – which, in part, prioritizes American workers and seeks to impose stricter standards on employment-based visas.
Chicago, Ill., attorney Tejas Shah, who leads Franczek Radelet’s immigration practice and co-chairs the South Asian Bar Association’s immigration panel, told India-West in April: “There is definitely a school of thought in the Trump administration that the program is unnecessary. Will that express itself in policy?”
In his law practice, Shah said he has seen a lot of concern about the overturning of the H-4 EAD rule. He added that he has seen H-4 holders attempt to switch their visas to H-1Bs, which is difficult as it requires the sponsorship of a U.S. employer, and luck in the lottery system which allocates the coveted visas.
For the time being, however, the program is safe and eligible H-4 spouses can continue to apply for work authorization, according to Murthy.
In a related issue, Rashi Bhatnagar, who writes a blog called “H-4 Visa, A Curse,” notes that many children of H-1B workers are aging out of their ability to remain in the country. “According to the law, only the H-4 visa-dependent spouses of the principal H-1B visa holders have been considered as immediate relatives.”
Children who are 21 or older are not considered immediate relatives, Bhatnagar explained in the blog post, adding that many have returned to India, despite spending their formative years in the U.S.
Bhatnagar is advocating for a program similar to the Deferred Action for Childhood Arrivals initiative – which provides relief from deportation to eligible undocumented children – for H-1B-dependent children who are aging out.