H-1B Visas Get the Ink but Key Workplace H-4 EAD Visa at Risk, Too

[UPDATED BELOW ON APRIL 19] Unnoticed by politicians or pundits, buried by headlines about travel bans and undocumented workers, is the possibility that well over 100,000 individuals gainfully employed in the United States may be about to lose their legally acquired work authorization.

They are the holders of the little-known H-4 visas, which they receive as dependent spouses of foreigners who are entitled to work in the United States in H-1B status. Each year, thousands of highly skilled foreign nationals are sponsored by employers for H-1B status that allows them to work in the United States. Their dependents, spouses and children, may live with them in the United States in H-4 status. But H-4 status alone does not grant work authorization. For some foreign national spouses, particularly those from India, the wait to obtain work authorization in the United States can be 10 years.

In 2015, to the great relief of many H-4 spouses, the Obama administration’s Department of Homeland Security issued the H-4 EAD, or employment authorization document rule allowing some of these spouses to obtain general work authorization while waiting to become Green Card holders. This led a group of high-tech workers, Save Jobs USA, to file a suit challenging the rule. That case was dismissed, but late in 2016, Save Jobs USA filed an appeal.

It was up to President Donald Trump’s Department of Justice to respond. Instead of filing a brief in support of the H-4 EAD rule, the DOJ, now headed by Attorney General Jeff Sessions, asked for and obtained a 60-day “pause” to “allow incoming leadership personnel adequate time to consider the issues.” It has been reported that Sessions is not a fan of the H-4 EAD rule. Trump may not be one, either.

Perhaps seeing the writing on the wall, Immigration Voice, an immigrant-rights advocacy group, along with two named individuals have filed a motion to intervene. The named plaintiffs are not simply spouses of H-1B workers who have “jobs”; they are both entrepreneurs who could not pursue their dreams without the H-4 EADs.

One is the owner of a luxury remodeling business in Connecticut. The other is a cancer immunotherapy researcher who was about to launch a company based upon her research. Their plans, like those of many other immigrants, now on hold due to the H-4 EAD uncertainty, would lead to more jobs (and more cures) for U.S. citizens.

On April 3 when the 60-day pause ended, the DOJ asked the court to hold the case in abeyance for up to six more months because “[t]he Department of Homeland Security has concluded that it is appropriate to actively reconsider whether to revise the H-4 rule through notice-and-comment rule-making.”

The possible loss of the H-4 EAD rule is not just about jobs and entrepreneurship, it is a personal matter and could also be seen as a blow to women’s rights. About 90 percent of H-4 visa holders are women and about 80 percent of those are Indian nationals. In her book, “Bride and Prejudice,” Sabrina Balgamwalla describes how women on H-4 visas suffer because they are “completely dependent” — all of their rights in the U.S. stem from their husbands since they have no way to support themselves.

Another academic, Divya Ravindranath, has interviewed Indian women who felt that they lost their identity when they could not work outside of their homes. Indeed, one women related that when the H-4 EAD rule was issued, “[i]t was like a prison gate had just been opened.”

Now it seems that some women are afraid that gate is closing. Shaadi.com, a popular Indian dating site, has just seen a 15 percent drop in women seeking eligible bachelors in the U.S. Young Indian men who have advanced academic degrees from U.S. institutions who are working and contributing to their companies in the United States may return to India with their skills because their wives cannot work or because they cannot find brides.

Allowing spouses of foreign skilled workers to have work authorization is hardly out of the ordinary. Indeed, the United States has come late to that game. The U.K., Australia, Canada, countries in Europe, Asia and others grant work authorization in similar circumstances. In this global and mobile economy, U.S. companies trying to hire the “best and the brightest” from abroad will be outbid by companies in other countries that can offer spousal work authorization. After all, how many among us can afford to be “one-income” families in today’s economic environment?

We know now that the Trump administration is trying to decide whether to retain the H-4 EAD rule or issue a modified rule. This is a matter in need of attention beyond the Indian community. If the H-4 EAD rule is withdrawn, that news will resonate among all foreign nationals, women’s rights advocates and businesses who will lose workers and any advantage for talent acquisition.

Perhaps a well-placed female entrepreneur like Ivanka Trump would have some say in this.

UPDATE:  On April 18, even as spouses of H-1B visa holders wonder if they will lose their work authorization, President Trump signed a new Executive Order dubbed “Buy American, Hire American.” Part of the order is focused on reform of the H-1B non-immigration visa program itself. The Departments of Homeland Security, Justice, Labor, and State are directed to crack down on fraud and abuse in the immigration system to create higher wages and rates of employment for U.S. workers.

Like various reform bills currently pending in Congress, reform of the H-1B visa program is focused on the perceived abuses of outsourcing firms. Indeed, some “reforms” have been made administratively. The DHS will be targeting outsourcing firms with more unannounced site visits to H-1B dependent employers. It also will target outsourcing firms in adjudications by considering whether employees classified as computer programmers really are eligible for H-1B status.

The president would also like to eliminate the random lottery system altogether and instead award H-1B visas to the “most skilled or highest paid” as an “elegant way of solving the problem” of outsourcing. Many tech firms disagree with this approach and believe that squeezing H-1B employers will only lead to more offshoring.

It is interesting to note that while these reforms, some administrative and some legislative, will affect all companies that use and need foreign workers, the large outsourcing firms may be the most affected and many of the largest of those are based in India. The result of the order will certainly be watched as closely by the Indian community in the U.S. and abroad as the H-4 EAD Rule.

Amy L. Peck is a principal at Jackson Lewis, a labor and employment law firm. Comment below or email editors@workforce.com.