Foreign Workers Rethink Plans as Agency Targets Spouses’ Permits

By Laura D. Francis

Scores of immigrant families are grappling with potential job loss and closing of businesses in the wake of the Trump administration’s plan to rescind a regulation granting work permits to the spouses of certain H-1B workers.

But the effects go even further, as those who were able to secure the work permits made life-changing decisions based on them.

The availability of the work permit allowed Praneetha Korlepara to finally buy a house with her husband. The two, from India, previously lived in separate areas of the U.S. because they both had H-1B specialty occupation visas and couldn’t get employers in the same town to sponsor them.

Madhu Reddy, whose wife has an H-1B, changed his immigration status so he could obtain a work permit and use it to start his own business. H-1B visa holders generally can’t be business owners because the visa rules require an H-1B worker to be an employee of the company, not an owner.

Prior to 2015, H-4 dependent spouses of H-1B specialty occupation workers weren’t allowed to work in the U.S. But an Obama administration regulation changed that, granting work permits to H-4 visa holders if their spouses have been approved for an employment-based green card and are waiting for one to become available. Because of green card backlogs, that wait can take decades.

The Homeland Security Department had been hinting at eliminating the H-4 work permit for months. The agency’s Dec. 14 release of its fall 2017 regulatory agenda was the first solid indication of the administration’s plans.

The announcement still came as a shock to many who benefited from it. 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 lot of people are extremely upset,” Harshit Chatur, vice president of media relations for Skilled Immigrants in America, told Bloomberg Law Dec. 15. SIIA, which advocates on behalf of highly skilled immigrants in the green card backlog, has been getting a lot of calls asking about what comes next, he said.

U.S. IT Workers Claim Job Competition

The issue has been a contentious one from the beginning. U.S. information technology workers have argued that handing out additional work permits has increased job competition in an area already slanted in favor of workers on temporary visas.

U.S. workers have experienced “decades of presidents using the immigration system to abuse them,” New Jersey attorney John Miano told Bloomberg Law Dec. 18. President Donald Trump was elected because his platform was “all about doing things for working Americans,” he said.

Miano represents a group of U.S. IT workers who sued over the H-4 work permit regulation in 2015. The workers were laid off by Southern California Edison earlier in the year and replaced by H-1B workers employed by an IT contractor.

The workers claim the regulation unfairly increases job competition, but a federal judge in Washington wasn’t convinced. The case is on appeal before the U.S. Court of Appeals for the District of Columbia Circuit.

“Everybody I’m talking to is celebrating” the promised end to the work permit program, Miano said.

Turmoil for Immigrant Couples?

But the H-4 workers who got permits under the regulation say they their lives could be turned upside down.

When the H-4 work permit became available, Korlepara changed her visa status to H-4 and was able to use the work permit to secure a job near her husband’s in Fort Wayne, Ind. That allowed the couple to live together, start a family, and contemplate starting a business, she told Bloomberg Law Dec. 15.

Unlike H-1B visas, which require an employer to sponsor the worker and pay the associated fees, H-4 work permits allow beneficiaries to work anywhere freely.

“My employer was able to hire me because they had no immigration burdens” such as having to file petitions or pay fees to the USCIS, Korlepara said.

But if she loses her work permit, Korlepara will have to quit her job or be terminated, because it will no longer be legal for her company to employ her. And her employer isn’t interested in sponsoring her for an H-1B visa, she said.

Reddy, who is from India, is already facing the conundrum of what to do with his business. He used his H-4 work permit to start a software services firm in Princeton, N.J.

Reddy’s business, which employs 22 U.S. workers, will likely have to close down if he loses his work permit, he told Bloomberg Law Dec. 15. “It’s totally unfair” when one administration creates a benefit and another just “snatches away the dreams of all the people,” he said.

Programmers Working as Janitors

But displaced U.S. workers are also having a hard time, Miano said. One of the workers laid off from Southern California Edison was a single mother who had just recently managed to find work, he said.

“I know one programmer who’s working as a janitor” at a Veterans Affairs Department hospital, Miano said.

It’s not just the H-4 work permit program that’s the problem, “it’s the whole system,” he said.

“The only real protection” against displacement of U.S. workers by those in the H-1B program is the annual cap on the visas, Miano said. That cap is currently set at 65,000, plus an additional 20,000 for workers with advanced degrees from U.S. colleges and universities.

Miano said the government has found ways to circumvent the cap—such as extending the optional practical training program, which allows international students to work for a period of time post-graduation. And former President Barack Obama claimed an unlimited authority to provide work authorization to foreign nationals, which would essentially wipe out any protections for U.S. workers that exist in the immigration statutes, he said.

Looking to Legislation

The H-4 work permit isn’t the real solution, Chatur of Skilled Immigrants in America told Bloomberg Law. H-1B workers’ spouses wouldn’t need work permits if it didn’t take so long for them to get a green card, he said.

The green card backlog is driven by a combination of overall annual caps on employment-based visas, coupled with limitations on how many can go to immigrants from any one country. For populous countries such as India, the wait could be as long as 70 years, according to some estimates.

A bill ( H.R. 392) to eliminate per-country caps on employment-based green cards currently has a whopping 302 co-sponsors. But it’s yet to move in Congress. SIIA has been pushing heavily for its passage.

“If Congress fixes the green card backlog, a lot of these problems wouldn’t be there,” Chatur said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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