Created in 2015 via executive action by then-President
As part of his immigration package unveiled Jan. 19, Biden included a provision to give dependents of H-1B visa holders work authorization. Though additional details are scarce, that would give the current H-4 work permit program a more permanent place in immigration law than it previously had.
For the past four years, the Obama program has taken fire in the form of Trump administration efforts to terminate it and litigation from U.S. technology workers seeking a similar result.
“Because it was created through regulation, it’s always open to being removed by regulations, and we’ve been under threat of that essentially since Trump took office,” said Emily Neumann, an immigration attorney with Reddy & Neumann in Houston. “We were at the whim of whatever party was in control.”
Biden’s move to make such work permits—often called employment authorization documents or EADs—a fixed feature of H-4 visas, “eliminates that possible back and forth,” Neumann said. “Once in the statute, the only way to eliminate it is for Congress to do it, and that takes a lot more doing.”
But it’s only the first step of several needed if the administration wants to improve the program for its participants, said Brad Banias, an immigration lawyer with Wasden Banias LLC. “It’s a great first step, but I think we need two or three more steps after that.”
Biden’s plan proposes big changes across the immigration landscape. Though text has yet to be released, the bill’s lead sponsor, Sen.
In addition to the H-4 EAD provision, the plan would further expand employers’ access to foreign workers by clearing out visa backlogs, ending per-country caps, recapturing employment-based green cards, and enabling foreign graduates in the science, technology, engineering, and math sectors to stay and work in the U.S., he said at a Jan. 21 briefing.
Regulations, Litigation to Untangle
Beyond Biden’s immigration plan, the change in administrations also means that the Trump administration’s multi-year effort to publish regulations to rescind the H-4 EAD program is done.
A proposed rule to remove H-4 dependent spouses from the class of nonimmigrants eligible for employment authorization was sent to the White House office of regulatory review in February 2019. Now the new administration has ordered a freeze on all pending agency regulations, effectively killing the effort.
But the program is still the target of litigation brought by a group of U.S.-born technology workers. That case, initially filed in 2016, was put on hold in 2017, awaiting the Trump administration rescission that never came..
“The problems with H-1B have been documented in serial governments” such as the inability of DOL to ensure that visa workers aren’t displacing U.S. workers, said John Miano, one of the attorneys representing the plaintiffs in the H-4 challenge with the Immigration Reform Law Institute. “And Joe Biden looks at this and his #1 priority in the H-1B is to allow the spouses of H-1B workers to work as well?”
Miano said the latest effort to make the H-4 employment authorization permanent is “not a solution.”
“This demonstrates the Biden administration lacks competence when it comes to immigration,” said Miano, whose organization is the legal arm of the Federation for American Immigration Reform, which advocates for lower immigration levels.
Targeting Permit Delays, Backlogs
H-4 visa holders have been particularly susceptible to increasing delays getting work permit applications through U.S. Citizenship and Immigration Services during the pandemic, in large part because of biometrics requirements imposed in March 2019.
USCIS announced all field offices and application support centers would close to the public on March 30, suspending biometric services. In July those services began to resume, but haven’t yet ramped up to meet the backlog of appointments created in those intervening months. For H-4 work permit holders, that’s meant potential job loss, including employee benefits like health insurance.
The Biden plan “fixes a lot, but it fixes a little,” said Banias, who represents H-4 work permit holders in lawsuits over processing delays. “We’re not worried about the existential threat, it’s the practical threat of watching people lose jobs and health care during a pandemic because the agency can’t make a decision on time.”
While the statutory fix for H-4 employment authorizations won’t fix the problem of processing times, it could give employers of these guest workers more certainty that their work authorization will remain in place, said the Houston immigration lawyer, Neumann.
Employers are “really hesitant to offer jobs to people who they couldn’t keep long term,” she said.
Ultimately, other provisions of Biden’s immigration proposal that target green card backlogs may help the program most in the long-term, she said.
“What created the need for the H-4 EAD is the backlog problem. So if we can resolve that through recapturing unused green cards, or increasing the cap, or making dependents not count toward the cap, any of those things would make it faster for Indian and Chinese nationals to actually receive their green card within the six years of their visa status,” Neumann said.
In the long run, Neumann said, it’s good to have both the work authorization provision and the provisions for employment-based green cards because the backlogs can always grow again.
“We know how tough it is to get immigration reform passed, so I think it’s important we have the H-4 EAD in the reform as well, just as a safety valve to make sure we never have this problem again,” she said.
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