Two legal proceedings currently threaten to strip H-4 visa holders—generally, spouses of H-1B visa holders—of a right to work they’ve enjoyed since May 2015.
The Trump administration has drafted a regulation to rescind the rule permitting certain H-4 spouses to seek employment in the United States. A group of IT workers have also sued the federal government arguing the Obama administration lacked authority to allow H-4 employment authorization in the first place.
The H-1B visa program permits U.S. employers to sponsor approximately 85,000 foreign professionals for new employment in the United States annually. These foreign workers can remain employed for up to six years, generally. Their spouses and minor children may join them in the U.S. as H-4 dependents. Historically, H-4 dependents could not accept employment.
A First for H-4 Visa Holders
In 2015, the Department of Homeland Security (DHS), under the Obama administration, published a regulation permitting certain H-4 spouses to apply for employment authorization. This marked the first time in the H-1B program’s modern history, which began in 1990, that H-4 visa holders were extended this benefit.
Not all H-4 spouses can work under the rule. To be eligible for an Employment Authorization Document (EAD), the principal H-1B spouse must be sponsored for employment-based U.S. permanent residency (the “green card”) and that sponsorship process must have reached a critical stage where the H-1B worker becomes exempt from the normal six-year limit. This then permits the sponsoring employer to renew the H-1B worker’s employment authorization until the U.S. residency application is fully adjudicated, at which time any H-4 dependents may also become U.S. residents and authorized to work indefinitely.
DHS designed the 2015 rule to address the personal and economic hardships placed on H-1B workers and their H-4 spouses who are transitioning to green card status but who are delayed in completing the process due to backlogs in the green card quota system.
DHS was also concerned that H-1B professionals, whose contributions the agency observed are highly correlated with economic growth and job creation, would be disinclined to pursue U.S. residency or opportunities in the United States if their spouses could not work for exceptionally long periods of time. As such a disincentive would result in these professionals applying their creativity and skills in other countries, DHS deemed this regulatory change a matter of U.S. economic competitiveness.
By the time the rule took effect in May 2015, a group of U.S. IT workers had already challenged the new regulation in federal court, claiming that DHS lacks authority from Congress to extend employment authorization to H-4 spouses.
The plaintiff—Save Jobs USA—asked the U.S. District Court for the District of Columbia to enjoin DHS from implementing the rule pending a decision on the merits and to otherwise invalidate the rule (Save Jobs USA v. U.S. Department of Homeland Security).
The court, however, found that the plaintiffs failed to demonstrate they would suffer irreparable harm if the DHS implemented the rule on schedule, and subsequently found the plaintiffs lacked standing to pursue the case. Consequently, the district court denied the request for a preliminary injunction and in September 2016 dismissed the case.
Save Jobs USA appealed to the U.S. Court of Appeals for the D.C. Circuit. (Save Jobs USA v. DHS). The case remains pending because shortly after President Donald Trump took office, the administration signaled its intention to rescind H-4 employment authorization via regulation and asked the court to hold the case in abeyance pending executive action.
In December 2018, after more than 18 months and numerous promises from the DHS that the rule was forthcoming, the court ordered the case removed from abeyance and set a briefing schedule.
The government’s brief, filed April 1, asked the circuit court to uphold the district court’s denial of the plaintiff’s claim for lack of standing.
It might seem counterintuitive that the DHS would continue to defend a lawsuit where the plaintiffs are seeking to invalidate an Obama era regulation the Trump Administration also seeks to rescind. But it makes sense that the DHS would prefer to abolish the rule by its own hand rather than having the judiciary take an expansive view of who has standing to request the eradication of a federal agency regulation.
As the court case proceeds, the DHS does appear to be moving closer to revealing its plan. The agency sent a proposed rule—"Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”—to the Office of Management and Budget (OMB) in February. The OMB is typically the final stop in the approval process before a proposed regulation is published, but neither the rule nor a draft preview of the rule has been released.
Once published in the Federal Register, the public will have at least 30 days to provide the DHS with comments on the impact of the regulation and the agency must review and consider these before finalizing and executing the rule.
Many thousands of H-1B workers and their working spouses may have their personal and professional lives disrupted and damaged by executive or judicial action eliminating H-4 employment authorization. These potentially impacted foreign nationals, and the American employers that rely on H-1B professionals or their dependent spouses to supplement their U.S. workforces, should stay abreast of developments and plan for adjustments and alternatives should H-4 spouses lose their ability to work.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Andrew Greenfield is the managing partner of Fragomen’s Washington, D.C., office and a member of the firm’s executive committee. He advises U.S. and global organizations across industries on U.S. immigration and nationality law, regulation, policy and compliance.