Court Spotlights Trump Plans to Stop H-1B Spouses From Working

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A new court decision has placed a spotlight on Trump administration policies aimed at restricting work authorization for the spouses of H-1B visa holders. To better understand the issue and recent developments, I interviewed William Stock, a founding member of Klasko Immigration Law Partners.

Stuart Anderson: What is H-4 EAD (employment authorization document)?

William Stock: H-4 visas allow the spouses and children of H-1B temporary professional workers to enter the United States with their family member. However, such individuals are not normally allowed to work in the United States. The H-4 EAD allows certain H-4 spouses to apply for employment authorization based on the fact that their H-1B husband or wife has been sponsored for permanent residence (a “green card”).

Normally an H-4 spouse can obtain a green card, too, but there are multiple-year delays in obtaining employment-based green cards for many H-1B visa holders, particularly from India and China due to per-country limits.

 

The H-4 EAD rule recognizes that these spouses are trapped for many years without being able to resume their careers in the United States or help support their families, and that they would have green cards but for delays that are beyond their and their spouses’ employers’ control.

Anderson: Why is the issue important for H-1B visa holders and their families, as well as employers?

Stock: According to USCIS data, more than 90% of the H-4 EAD holders are women from India, the majority of whom have professional degrees, and many of whom had careers before they came to the United States. While some take the time without an EAD to raise a family, the long delays for the immigration process for Indian professionals (10 to 15 years or potentially much longer) mean that these women face challenges when they are ready to resume their careers in the United States. They are physicians, business analysts, information technology professionals and entrepreneurs who want to continue their careers on a part-time or full-time basis. It would be challenging or impossible for them to do so without the availability of an H-4 EAD.

Anderson: Can you explain the background of the lawsuit?

Stock: The H-4 EAD was created by regulation in early 2015, and before the rule went into effect, a group called “Save Jobs USA” filed a lawsuit seeking to enjoin the rule from going into effect. Their lawsuit sought to have a court consider their argument that the H-4 EAD rule exceeded the Department of Homeland Security’s statutory authority by creating a class of nonimmigrants (temporary visa holders) eligible for employment by regulation, rather than waiting for Congress to enact a law.

The district court chose not to reach or address that issue, however, denying the request for an injunction and later dismissing the lawsuit on the basis that Save Jobs USA did not have “standing” to bring the lawsuit. “Standing” is the legal doctrine that says a plaintiff must have been harmed directly by a government policy to be able to challenge it in court.

The court ruled that the members of Save Jobs USA asserted a harm – their own loss of employment in the information technology industry – that did not have sufficient connection to the change in policy because they could not show that they were in direct competition with the H-4 EAD holders.

Anderson: What is the Trump administration’s view of H-4 EADs?

Stock: This lawsuit was still going on in January 2017 when the Trump administration began, having been appealed by Save Jobs USA to the D.C. Circuit Court of Appeals. The Trump administration told the court to hold off making any decision because it was planning to issue a new regulation to eliminate the H-4 EAD, which would make the lawsuit moot.

At the end of last year, the Court of Appeals decided it would no longer wait for the administration to finalize that rule (it is still pending clearance to be published), and allowed Immigration Voice, a nonprofit organization that includes H-1B holders and their families, to intervene in the lawsuit and make arguments in defense of the rule. 

Anderson: What does the latest court decision mean?

Stock: The D.C. Circuit ruled that the lower court had taken too narrow a view of the standing requirements and allowed the lawsuit to proceed. Because the case was decided only on standing, and not on the substance of Save Jobs USA’s challenge to the rule, the Circuit Court sent the case back to the district court with instructions to fully consider Save Jobs USA’s substantive arguments about the rule, and allow the government and the intervenors to make their case in favor of the rule. Of course, the lower court may instead choose to wait and see whether the H-4 EAD rule is rescinded by the spring of 2020, which would render the lawsuit moot.

Anderson: The Trump administration has said it supports the immigration policies of Canada and Australia but don’t those two countries provide work authorization to the spouses of high-skilled temporary visa holders?

Stock: There are currently 35 countries around the world in which spouses and/or domestic partners of foreign national work permit holders are able to obtain “open market” work permits of their own merely by accompanying their family member, according to the Permits Foundation. These countries include some of our biggest competitors for immigrant talent, including Canada, Australia, the UK and most of the EU countries.

Anderson: Do you have any predictions on what will happen on H-4 EADs?

Stock: The Trump administration has said it is moving forward with a proposal to rescind the H-4 EAD rule. The next step in that process, the proposed rule, is expected in the spring of 2020, based on the government’s representations in court. There will be a 60-day comment period, during which time the agency will collect public feedback on the rule and the economic justification for the rule. After comments are collected, they will need to be analyzed so the rule can be finalized – but the final rule will need to go through the same clearance process as the proposed rule did.

Even after a final rule is issued it may be challenged by adversely affected parties, such as Immigration Voice, or U.S. employers adversely affected by the loss of their H-4 and H-1B employees.

Anderson: What do you think is the right policy on work authorization for the spouses of H-1B visa holders?

Stock: Highly skilled immigrant spouses are an incredible pool of human potential that the U.S. squanders when it limits employment opportunities for H-4 spouses. Whether by regulation or by statute, allowing spouses of highly skilled workers to access the labor market, contribute to the tax base, grow the economy and help their families is good policy and should be the law of the land. It is commonly held wisdom that when families succeed, America succeeds.