Termination of Work Permits for Foreign Workers’ Spouses Delayed (1)

A proposal to eliminate a program providing work permits to the spouses of skilled foreign workers stuck in the green card backlog won’t be revealed until at least June.

The Department of Homeland Security Feb. 28 said “significant revisions” were made to a draft that originally was slated for a February release. Those revisions required a new economic analysis, which “required an additional several weeks to perform,” the DHS told a federal appeals court.

The notice about the proposal to revoke work permits for the spouses of H-1B guestworkers came in the context of a lawsuit challenging the 2015 regulation authorizing them. The DHS has been successful several times in getting the U.S. Court of Appeals for the District of Columbia Circuit to delay the case. The delays are based on the agency’s assurances that it plans to undo the work permit program.

Save Jobs USA, which represents U.S. workers who allegedly lost their jobs to foreign workers on H-1B visas, appealed to the D.C. Circuit after a federal judge in Washington dismissed their claims that the spousal work permits create additional job competition.

The DHS in December 2017 indicated an intent to overturn the rule in its fall regulatory agenda.

But pushing back the proposed regulation to June likely means a final rule on the work permit program won’t come until at least the end of the year, if not 2019. The process for soliciting and reviewing public comments on changes to regulations often takes several months.

‘Endless Delays’

“You can just imagine our frustration at the endless delays,” New Jersey attorney John Miano, who is representing Save Jobs USA in the lawsuit, told Bloomberg Law March 1. “The case could have been decided by now,” he said.

Not only that, but “we have no idea whether the new regulations” will change the program to the extent that the U.S. workers’ claims are moot, Miano said. “And we have no idea whether the courts will allow the new regulations to go into effect,” he said.

The work permits are reserved for the spouses of H-1B workers who have been approved for their green cards but are waiting for them to become available. Overall annual limits on employment-based green cards, coupled with per-country caps, can translate into wait times of years or even decades.

The DHS’ U.S. Citizenship and Immigration Services has awarded 104,750 work permits to the H-4 spouses of H-1B visa holders, according to agency data.

A representative for the USCIS declined to comment.

The case is Save Jobs USA v. Dep’t of Homeland Sec., D.C. Cir., No. 16-5287, status update 2/28/18.