H1B spouses' H4 work permits are being walked off the cliff in the Donald Trump era and anxiety is peaking: All you need to know

New York: The Donald Trump government’s process of slow-walking H1B spouses' H4 visa work permit off the cliff is on its last mile and anxiety is peaking across the community of H1B spouses in the United States. The proposed rule to do away with H4 work permits (which came into effect in Barack Obama's second term) was sent to the Trump administration’s Office of Management and Budget (OMB) for review last week. Headlines like "Game over for H4EAD" are floating around as families are torn between decisions about work and life in the US and the endless skewering.

"The squeeze is real and it's very effective from the administration's point of view. H1B extensions are getting very hard. Our families are getting hit. Spouses are upset that they may be denied working rights and to top to all, recruiters are going cold when they hear the word H1B. It's coming at us from all sides and frankly, we can't take it any more", an ex-H1B worker who has moved to Canada barely a month ago, told Firstpost, in a phone conversation.

 H1B spouses H4 work permits are being walked off the cliff in the Donald Trump era and anxiety is peaking: All you need to know

DHS Secretary Kirstjen Nielsen. Reuters

The H4 EAD is a work permit for spouses of H1B workers who have been approved for green cards and are yet to get those in hand. The Trump administration first announced its intent to scrap the H4 EAD in early 2017. The pushback against these work permits predates the Trump era and takes the form of a lawsuit launched against the program within days of its announcement by the Barack Obama government in 2015.

Charts extrapolating how quickly or slowly the H4 revocation could happen speak to the many pressures working on legal immigrant spouses over a prolonged period of many years now of which the last 2 years have been the most fraught.

"Let’s do everything collectively in our power to prevent the revocation of H-4 EAD", says Cyrus Mehta, a high name recognition immigration attorney based in New York.

In government filings, the proposed changes are listed as “economically significant” and with “international impact”. At least 45% of all pending rule changes are in the “proposed rule” stage. You can see the high level overview here.  If OMB moves at top speed and wraps up comments period within 30 days, we are looking at Spring 2019 when the comments review may begin. On the same sliding scale, a slower pace could push it all out by a few months. Either way, a constant gnawing remains for H1B families.

Once OMB reviews the proposed rule, it will be published in the Federal Register and opened for comments - the typical rubric for rule changes. Those who are following this can check for DHS pending rules and look for 1615-AC15. The same link also summarises the 'official' DHS lens on the issue.

Framed against the backdrop of the wider political scene in the country, the brief history of the H4 EAD in the Trump era fits neatly within the US president’s all-base, all-the-time strategy. But, like anything else, the White House’s chief occupant is the final wild card in this game and could always (in theory) step off the gas at any time. The motivations to soften the blow could come from multiple flanks and are emergent in nature, not all of which are overt at this moment.

At this time, the biggest of the #MAGA themed decisions - Trump's emergency declaration - is also on thin ice. Nearly two dozen former Republican members of Congress are urging GOP lawmakers to reject President Donald Trump’s national emergency declaration to build a wall on the U.S.-Mexico border. Whichever way that goes, it's an anthem for shifting sands and chaos well into the 2020 campaign season and all the way till the November 2020 elections.

Anirban Das, who came to the US on an F1 student visa to study for an Engineering Master's degree and has been a leading advocate for skilled immigrants here, explains how the numbers stack up, in a tweet: “As per USCIS stats, 100k #H4EAD are issued, out of which 30k were renewals. Which means only 70K are original applicants. USCIS has no idea how many are ACTUALLY working. US labor force is approx. 155 million. And they want to pull out 70k people from the workforce?”

This is how DHS explains the upside for citizens: “DHS anticipates that there would be two primary impacts that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”

Das, quoted above, refutes that idea as a “lump of labor” theory. "USCIS claims #H4EAD takes away American jobs. If an #H4EAD takes a job, it means a corresponding job loss for a citizen. This is "lump of labor" fallacy. No. of jobs in US economy are not set in stone. Studies show when more people join workforce, more jobs are created".

Prominent US politicians have been at the forefront of the pushback; now even more so. Kamala Harris, the Indian American running for 2020 has called the effort “outrageous”. She tweeted that it “will force immigrant women who are doctors, nurses, scientists & academics, among others, to abandon their professional careers. I called on DHS last year to withdraw this proposal & will continue to fight this.”

Officials are silent on the fine print. What wasn’t clear earlier remains that way. We don’t know whether the proposed rule change will have retrospective effect or not. If say, an H1B spouse has an H4 EAD that is stamped till 2021 and the rule changes this year, does it mean the H4EAD holder must stop work for pay immediately? The lion’s share of H4 EADs are held by Indians, mostly women. A small percentage of H4 visa holders are men.

The closest we have come to an official/ bureaucratic view on this are USCIS chief Francis Cissna's quotes to Bloomberg Law. Cissna said there are “very good reasons why you might want to have H-1B spouses be able to work,” and that many of those spouses are “very highly skilled.” “If the spouse can’t work, that might prevent that person from wanting to come over or stay,” but that’s something Congress should fix, he told reporter Laura D Francis.

“The reason why we’re proposing rescinding it is not because we don’t desire these people to have employment authorization...It’s because, amongst other reasons, it doesn’t appear to have been the intent of Congress to grant them work authorization,” Cissna said, in the same Bloomberg interview.

The replies on this Twitter thread below give us a good sense of how many directions the H4 or even the H1B debate can take when it goes beyond the legal framework and instead becomes a flashpoint between a dominant group and a new subculture that gains currency in an economy, like the H1B has come to be understood over three decades of its presence in the US.

Updated Date: Feb 26, 2019 02:51:44 IST