Trump govt puts H1B workers’ spouses on thin ice; H4 work authorisation in limbo
The H4 visa nightmare is happening.
It doesn’t take a Trump executive order to make the H1B community run for cover – a series of measures by the United States Citizenship and Immigration Services and other government arms to tighten the screws is good enough.
Take the latest whiplash on Women’s Day which skewers the one bright spot in the H4 visa – The US Department of Justice is seeking a 60-day freeze over issuance of new work authorisations for H4 visa holders as a follow up of an ongoing case filed by Save Jobs USA which has found new resolve after the Trump win last November. For more on the case details, this press release by Immigration Voice is a useful resource. Note that the DoJ move is limited to the EAD or Employment Authorization Document given to certain H4 visa holders depending upon the status of the H1B principal and this latest move is not about the visa itself, which is safe for now.
H1B workers’ dependant spouses on the H4 visa ( under certain conditions, explained below) were allowed to find paid work in the fag end of the Obama rule.
The new US Attorney general Jeff Sessions has said emphatically that the H4 rule ( to allow work authorisation) “hurts American workers.”
Considering that Trump’s spate of executive orders that has created chaos worldwide is anti-Obama at its core, the H4 backlash is no surprise at all.
By clamping down on premium processing of H1B visas and now upping the difficulty level for H4 visas, the Trump government is showing that it does not take executive orders to spread panic and confusion among immigrant labour force. Starting April 3, 2017, the USCIS will temporarily suspend premium processing for all H1B petitions. This suspension may last up to six months. Premium Processing is basically a fast track option that gets your H1B visa or extension the USCIS nod swiftly if you pony up the extra cash.
A Times of India report quotes three examples of people who have contributed positively to the US while benefitting from the rule and explains how the H4 rule to allow work authorisation is not all about “bored spouses” potentially taking away an American’s job.
Here’s what has been making the H4 community uneasy over the last few weeks – Trump’s press secretary Sean Spicer’s pointed remarks during what is clearly honeymoon season for Trump staffers: “With respect to H-1Bs and other visas, it’s part of a larger immigration reform effort that the president will continue to talk about through executive order and through working with Congress.”
There has already been “a lot of action on immigration,”Spicer said, and “whether it’s that or the spousal visas or other types of visas I think there’s an overall need to look at all these programs.”
Up until the summer of 2015, H4 visa holders could not legally hold paid employment in the United States.
The fag end of the Obama years changed all that and was met with wild celebrations among Indians in the US. With Trump in office and the prospect of benign neglect to immigration red flags that marked the Obama presidency now gone, H-4s have a lot to be edgy about even if nothing eventually changes.
Although the H-4 is not applicable to all H1-B workers’ dependants, it covers a lot of ground.
Work authorisation for H4 covers dependent spouses of H-1B nonimmigrants on two conditions – the more crucial one being that the H1-B visa holder is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker which is basically a mild upgrade of the plain vanilla H1B under which an IT worker may have entered the US.
When the H4 tweaks came into force in the summer of 2015, a copious document of the final rule explained that the concern about “disincentives” to skilled, well educated spouses of H1B workers and the social/ family disruptions therein were at the soul of the new permissions: “This rule is intended to remove a disincentive to pursuing lawful permanent resident (LPR) status due to the potentially long wait for employment-based immigrant visas for many H-1B nonimmigrants and their family members. This rule will encourage H-1B nonimmigrants who have already taken steps to become LPRs to not abandon their efforts because their H-4 dependent spouses are unable to work. By encouraging H-1B nonimmigrants to continue in their pursuit of becoming LPRs, this rule would minimize disruptions to petitioning U.S. employers. Additionally, eligible H-4 dependent spouses who participate in the labor market will benefit financially. DHS also anticipates that the socioeconomic benefits associated with permitting H-4 spouses to participate in the labor market will assist H-1B families in integrating into the U.S. community and economy.”
The H4 rule has not been without its critics, though. Pushback came thick and fast. Former employees of Southern California Edison filed a suit against the U.S. Department of Homeland Security (DHS) to try and block the new regulation allowing qualifying H-4 spouses to apply for employment authorization documents (EADs). A federal district court in September 2016 dismissed the petition on the grounds of the plaintiff’s lack of legal standing. H4s have taken up paid employment all over America but the pushback both then and now is symptomatic of powerful social-economic ingredients that put Trump in the White House – hyper nationalism.
The same plaintiffs, armed with new resolve after the Trump win, are not backing off. They are in the process of appealing the dismissal of their case and immigration law firms in the US are being flooded with queries on whether the Trump administration may try to end the H4 employment permissions via this pending lawsuit.
With the Trump administration going hammer and tongs at closing all the loopholes commonly exploited by H1B body shops, expect the latest move to spark protests both on main street and in the living room.
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