Proposed change would revoke the right of spouses of H-1B visa holders to work

Coming on the heels of the October announcement (details here) that H-1B renewal applications for highly-skilled foreign workers would come under increased scrutiny, the Department of Homeland Security recently announced that it will seek to terminate a provision enacted in 2015 under the Obama administration that allows the spouses of H-1B visa holders who are waiting for green cards to legally work in the U.S. As with the changes to H-1B renewals, this change seeks to bring immigration policies into compliance with Trump’s “Buy American, Hire American” Executive Order, and are part of broader changes the administration is seeking to make to the H-1B visa program.


H-1B and H-4 visas, explained

H-1B visas allow highly-skilled workers to work in the U.S. for three to six years, after which
time, and if their employer decides to sponsor them, they can apply to become a permanent resident. Children and spouses of H-1B visa holders can apply for an H-4 visa. Currently, the H-4 visa-holding spouse can file a Form I-765, which, if granted, allows unrestricted employment in the U.S.


New rule would primarily affect women, immigrant families from India

Because the majority of H-1B holders are men (estimates put this number at about 85%, details here), the vast majority of spouses on H-4 visas are women. If the current employment authorization for spouses of H-1B holders is terminated, effects will be felt throughout the immigrant worker community in the U.S, particularly for these primarily female holders of H-4 visas. As an NBC News article points out, giving spouses the right to contribute to household income can help ensure that overseas talent is retained in the U.S. It can also lead to greater gender equality for the H-4 visa holders themselves, who, prior to the H-4 program could not work or even obtain a social security number, and had little recourse in the event of situations like domestic violence. In addition, without the protection of work authorization for H-4 holders, the families of H-1B visa workers are at risk of deportation should the H-1B visa holder lose his or her job. It should also be noted that because up to 70% of H1-B visa holders are from India (see article) (with a large share also coming from China), workers from this country will be disproportionately affected.

It is anticipated that a final ruling on the work eligibility of H-4 visa holders will be made in
February (see article).

 

Andrew David

Andrew David is the principal of David Immigration Law PLLC, and one of very few dual-citizen lawyers qualified to practice law in both the United States and Australia. Andrew advises individuals, small- and medium-sized businesses, and large multinational companies on U.S. immigration law and procedure.