For H4 spouses of H1B workers, New Year returns old fears

Work permits granted by the Obama administration to H4 dependents of H1B workers hang by a fragile thread on the other side of the New Year as a crucial case challenging employment authorisation for H4 visa holders comes up for hearing in a Washington D.C courthouse January 2, 2018 after a bruising year of anti-immigrant sentiment sweeping across America. The case in focus is Save Jobs USA versus Department of Homeland Security. Save Jobs USA - a clutch of of IT workers who claim they lost their jobs to H1B workers - wants to overturn the Department of Homeland Security (DHS) rule that allows certain H-4 spouses to apply for and gain work authorization. Although Save Jobs USA met with initial failure, the gale force of a Trump presidency has given the organisation fresh resolve. [caption id=“attachment_4282157” align=“alignleft” width=“380”]  Immigrants march in front of the US Congress against the Trump-led assault on the influx into America / Reuters[/caption] H4 visa holders are dependents of H1B workers in America. H1B visas allow foreign workers, generally with bachelor’s degrees or higher, to work for three years at a time, often in the technology, healthcare and education sectors. Foreign fashion models also qualify under the H1B category although the present retaliation in the first year of Trump’s presidency has been entirely focused on tech workers. The possible scrapping of the H4 visa employment authorisation ties in neatly with the anti-immigrant agenda that has put Trump in the White House. Since January 2017, The Trump administration has chipped away methodically at making H1B paperwork the most tangled of all work visa categories in the United States, challenging applications more often than at nearly any point in the Obama era. Latest numbers available from the United States Citizenship and Immigration Services  show that the United States has so far given employment authorisation documents to 104,750 H4 visa holders (spouses/ dependents of H1B workers) since 2015 when the floodgates first opened. These raw numbers don’t reflect the usage pattern of these visas. For instance, not all 104,750 H4 EAD holders actually work in paid jobs. Many of them are H1B workers who shifted to H4 EAD during say, a maternity break or any other family related need that put them out of the work loop for an extended period. Rather than have a plain vanilla H4, they applied for and took the H4 EAD because it offers a modicum of safety for career relaunchers. The essential nature of the H1B visa that it gives primacy to the H1B worker and puts dependents into a visa category that had zero working rights in the US has long been a pain point. In the wider arc of the 27 years that the H1B has existed, the EAD rule change that Obama bequeathed is a bright spot that had barely one year in peace and quiet before the resentment agenda which fuelled the Trump presidency ran roughshod over it. Although employment based visa categories are not in the line of fire per se, any visa that allows for lateral entry of family (into the American workforce) certainly is on the DHS radar. Based on that singular criterion of “extended family connections” the EAD for H4 visa holders stands out starkly in its present form. The Department of Homeland Security recently put out an note signalling the possible dead end that looms: “DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization,” it said in a note marked “economically significant”. “DHS anticipates that there would be two primary impacts that DHS can estimate: the cost-savings accruing to forgone future filings by H-4 spouses, and labor turnover costs that employers of H-4 workers could incur,” says America’s foremost border control agency. Stakes are high on both sides of the aisle - Save Jobs USA is hoping for a Trump style putdown of the H4 visa’s elevated status among spouse visas and acknowledgement that the original employment authorization itself was against the law. For H4 visa holders who took up paid work on the strength of the Obama era rule, a negative decision will be a body blow. Unlike the commonly quoted figure of 85,000 visas per year in H1B stories, the cumulative numbers of H1B workers in the US and therefore, spouses on H4s, are in a different league. That’s because H1Bs can be rolled over after a 3 year period and with every influx of new H1Bs each year, the earlier batch does not go away. Basis this layering, USCIS can approve more than 330,000 H-1B petitions each year, which includes extensions and amendments. As of April 2017, USCIS reported more than 680,000 approved and valid H-1B petitions. After a quarter century of waiting, the H4 spouse in America got some respite in 2015. Today, given all that we know and the signals from the Trump administration, the outlook for the H4 looks bleak, save for an unexpected turn of events. Related link: A guide to the rule making process in America