As the Department of Homeland Security finalizes its plans to end work authorization for H-4 visa holders whose spouses are on track to get a green card, Indian American families, tired of the tenuous balance of their lives in the U.S., say they are planning to return to India.
“America is just not the place any more to make future plans,” Shilpa Patil, a dentist from Mumbai who holds a master’s degree in public health from the University of Texas, told India-West. “The people who are playing with our lives have no idea of the harsh realities we face,” said Patil, an H-4 visa holder who currently has work authorization, but faces an uncertain future once the program ends.
Patil and her husband Rohan have two young children and were contemplating buying a house in Houston, Texas. Their plans quickly changed when Rohan filed an amendment to his H-1B visa which noted he was now traveling to Chicago, Illinois, for work. He received a letter earlier this month, which stated in part that his visa would expire in July this year, rather than 2021; it was inexplicably cut by two years.
“I told my husband this morning: ‘if you tell me, I’m ready to go today,’” Patil told India-West; she is also concerned that when her husband’s status expires in July, her dependent status will also expire.
Also unsettling is the lengthy wait for an employment-based green card: Indian American immigration advocates say the wait time for people from India could be as long as 70 years.
The continuation of the H-4 work authorization program — put into place in 2015 by the Obama administration — has been in jeopardy since the advent of the Trump administration, which has prioritized “Buy American and Hire Americans.”
The program currently allows about 90,000 people, primarily women from India, to legally work in the U.S.
DHS Feb. 20 submitted a draft rule ending the program to the Office of Management and Budget at the White House. At the OMB, the rule will be reviewed by the Office of Information and Regulatory Affairs, headed by Indian American Neomi Rao.
Rao — Trump’s controversial nominee for the DC Circuit Court of Appeals, the second most-powerful court in the nation — has made no public comment on the H4 EAD program. She is the daughter of immigrant Parsi doctors.
In the draft rule submitted to OMB, DHS stated that there would be two primary impacts the agency could quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs are terminated.
“Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market,” noted DHS in the proposed rule.
Once OMB submits its edits on the rule, DHS must then incorporate those items and submit a rule into the Federal Register for a public comment period of 30 to 60 days.
After the public comment period is over, DHS must address all significant concerns before it publishes a final rule. It is unclear whether H-4 EADs will immediately be revoked, or whether the program will be phased out as individual authorizations expire. DHS is continuing to accept applications for H-4 EAD, along with renewals.
Former White House administration official Doug Rand, president and co-founder of Boundless Immigration (https://www.boundless.com), told India-West that there is no deadline by which OIRA must submit its edits to the draft proposal. “I've seen it take days, weeks, or months. OMB may have zero edits, or there could be complicated wrangling,” he said.
No federal agency can publish a "significant regulatory action" without clearance from OIRA, Rand explained, noting that the rescission of H-4 EAD has already been designated as “significant.”
If OIRA makes significant changes to the draft, DHS and the agency must work the issues out internally before OIRA clears the draft, and DHS issues a Notice of Proposed Rulemaking for public comment.
OIRA’s review is procedural and not meant to be substantive, Rand explained to India-West.
If DHS finalizes the rescission, it is likely to be challenged in court, he predicted. The DC Court of Appeals is currently considering a case brought on by Save Jobs USA, which seeks to end work authorization for H-4 visa holders. If DHS is successful, that lawsuit would be moot, said Rand.
Reps. Zoe Lofgren and Anna Eshoo, Democrat representatives from California, introduced legislation last November to save the H-4 EAD program (see India-West story here: https://bit.ly/2Tw3I5q). Indian American Senator Kamala Harris, D-California, and Sen. Kirsten Gillibrand, D-New York, have written to DHS and USCIS to leave the program intact.
“This is outrageous & will force immigrant women who are doctors, nurses, scientists & academics, among others, to abandon their professional careers,” tweeted Harris Feb. 22. “I called on DHS last year to withdraw this proposal and will continue to fight this,” she said.