H-4 visa holders, who have been on tenterhooks since the Trump administration announced last year that it intended to revoke their work authorization, can relax for now as the program will continue on for at least this year, according to a former Obama administration official who was pivotal to developing the EAD rule.
“The Trump administration has made no secret of the fact that they want to curtail these work permits. But it’s not something you can do half-baked,” Doug Rand, former assistant director for entrepreneurship in the Obama White House who helped implement the H-4 work authorization rule, told India-West.
Rand, the co-founder of Boundless - https://www.boundless.co - a technology company that helps families navigate the immigration process, doubted that the administration would announce a new proposed rule in June, as widely anticipated. “Their ambitious regulatory agenda is all behind schedule,” he said, noting that a new final rule may be introduced late this year.
Last December, the Department of Homeland Security announced it was proposing a rule to strip H-4 visa holders of their legal ability to work. On Feb. 28, DHS filed a motion in the Save Jobs USA lawsuit – which contends that H-4 EADs are depriving American workers of jobs – stating it would issue the new proposed rule in June, as it needed time to determine the economic impact of terminating the program (see India-West story here).
The proposal of a new rule is step 1 in a long process. A 60-day public comment period would follow once the proposed rule is entered into the Federal Register. “The agency must address any novel issues before it issues a final rule,” Rand said, noting that when the Obama administration went through a similar process to authorize H-4 EADs, it received over 10,000 responses. He expects no less response for the rescission rule.
But the final rule will likely face a court challenge, added Rand, who expects that a district court may issue an injunction to prevent the new rule from being implemented. District courts have issued injunctions following many of the Trump administration’s key mandates, including the travel ban, and the proposal to end the Deferred Action for Childhood Arrivals program.
In 2015, following a multi-year battle, the Obama administration granted work authorization to certain H-4 visa holders – about 100,000 women from India – whose spouses are on track to get legal permanent residency.
The Obama administration noted that H-1B holders with approved green card applications – along with their spouses and dependent children – were facing multi-decade long waits before actually receiving a green card, due to per-country caps, which mandate that no single country can get more than seven percent of the 140,000 employment-based green cards allotted each year. About 9,800 employment-based green cards are approved for Indians each year, leaving more than half a million others in a backlog that can last up to 70 years.
"Our immigration system has been broken for a very long time - and everybody knows it,” said former President Barack Obama, announcing the new H-4 EAD rule in 2014. “As Americans, we believe in fairness - the idea that if we work hard and play by the rules, we can get ahead. But too often, the immigration system feels fundamentally unfair. You’ve got families who try to come here the right way but sometimes get separated or stuck in line for years.”
Rand – who is in favor of doing away with the per-country caps – noted that they stemmed from 1965, when Congress was aiming to create fairness in the immigration system. “All of the racist immigration quotas were eliminated, which was very progressive for that time.”
“50 years later, the caps are accidentally discriminatory,” he said, noting that immigrants from smaller countries can “sail through” the green card process, while those from India and China face long delays.
The former Obama administration official said he doubts the Trump administration will revoke existing EADs, fearing a lawsuit it is unlikely to win. He encouraged women who are eligible for work authorization to apply now and lock in their status. Those whose status end within six months should also apply for a renewal, he suggested.
“Highly educated women in STEM fields are exactly what the U.S. economy needs,” Rand told India-West, adding: “It’s not fair to deny a work permit to someone who should already be an American.”