Spouses of US immigrants on H-1B visas could lose their right to work
An ongoing lawsuit and a clampdown by the Trump administration has left the status of thousands of skilled workers’ spouses hanging in the balance. Thousands of people – mostly women – working legally in the United States under Obama-era rules could be forced to stop working under Trump.
Currently, if someone has an H-1B visa, which allows skilled workers to come to the US temporarily, and has applied for lawful permanent residence, their spouse can apply to work under an H-4 employment authorization.
“These are almost always highly educated women who are pretty awesome in their own right. They have master’s degrees, doctorates and are capable of contributing a lot,” said Madhuri Nemali, a Silicon Valley immigration lawyer at Cameo Law Group, who has seen a surge in queries from concerned clients.
This authorization, called the H-4 employment authorization document, (EAD) was introduced by the Obama administration in February 2015 to try to retain skilled talent in the United States. Not permitting spouses to work during the long wait for green cards – which can take more than a decade – acted as a disincentive for families where both partners wanted to pursue careers.
Now the employment status of thousands of spouses hangs in the balance thanks to a lawsuit filed in 2015 by Save Jobs USA, an organization composed of IT workers who claim they lost their jobs to H-1B visa holders.
The Save Jobs lawsuit, which landed in a federal appeals court, contends that the H-4 authorizations are taking away jobs from American citizens and that the Department of Homeland Security (DHS) did not have the authority to create a new employment visa category. Only Congress can authorize H-4 spouses to work, it said.
The court was due to make a decision about how to proceed on Monday 3 April, following a 60-day hold on proceedings, which the DHS said would give “incoming leadership personnel adequate time to consider the issues”. However, the DHS requested an additional 180 days, putting the case on hold until 27 September 2017. Save Jobs USA has opposed that motion.
John Miano from the Center for Immigration Studies, the lawyer representing Save Jobs USA, said that the case was part of a broader mission to clamp down on the abuse of the immigration system. He said that the Obama administration “ran roughshod over the protections for American workers by promulgating regulations and interpretations allowing clients to work in the United States”.
Whatever happens in that lawsuit, it’s clear that the Trump administration wants to clamp down on the H-1B visa program and that when the attorney general, Jeff Sessions, was a senator he opposed Obama’s decision to allow H-4s to work, describing it as an immigration law change “that hurts American workers”. A draft executive order leaked in late January also suggested that H-4 EAD was on the chopping block.
Rescinding the authorization will disproportionately affect Indian nationals, who take up the bulk of H-1B visas and have one of the longest green card backlogs. This is because there’s a fixed per-country cap on green cards that’s not adjusted for population size, which unfairly penalizes countries with huge populations like India and China. This means that the average Indian green card applicant has to wait more than a decade.
“People who have the H-4 EAD in any other country in the world would be regarded as a green card holder or citizen. Because the backlog for Indian green card applicants is so large in the US this is a systematic way to discriminate against a group of people,” said Aman Kapoor, the president of immigrant advocacy group Immigration Voice.
“For us it’s not just about not being able to work, it’s about basic rights,” he said.
Immigration Voice points out that many of those working on H-4 EAD have set up companies that end up hiring American citizens.
Anuj Dhamija has been working in the US since 2010 as a project manager for a Fortune 100 company. He switched to the H-4 employment authorization program to set up his home remodeling business which he says is scheduled to create between five and 10 American construction jobs.
“If this program ceased to exist, I will lose all my investment in the new business and also my job as there will be no other legal option for me to work in the USA. I will face significant financial hardships and won’t be able to provide for my growing family,” Dhamija said in a statement.
He believes that H-1B should be a time-limited guestworker program, not a “try-to-buy” program for green cards.
Daniel Costa, director of immigration law and policy research at the Economic Policy Institute, highlights the fact that the subset of people affected by the rule are already on their way to becoming permanent residents and, after five years, even citizens.
“So the government keeping them from working is really only a temporary thing, based on backlogs,” said Costa. “That fact weighs in favor of letting them work, I think. Many of them are just Americans-in-waiting.”