February 21, 2019
A program providing work permits to the spouses of some H-1B skilled guestworkers appears to be coming to an end.
U.S. Citizenship and Immigration Services has completed a proposed regulation to eliminate the program, which provides work authorization to the H-4 spouses of H-1B workers who’ve been approved for green cards but are waiting for them to become available. The proposal was sent to the White House Office of Management and Budget for review Feb. 20.
The administration first announced its intent to do away with the work permits, also known as employment authorization documents (EADs), in early 2017. The announcement came in the context of a lawsuit against the program, which was launched in 2015 by the Obama administration.
Some 90,000 foreign nationals, mostly women from India, hold EADs through the program. It’s unclear whether the regulation would immediately revoke the EADs or phase them out by prohibiting renewal once a current permit expired.
Work permit holders and their supporters, including large tech companies, say the loss of that ability to work would harm them as well as the U.S. economy.
“Our objective is to always obtain independent work authorization for employees where possible and we are actively working with employees who might be impacted,” Facebook Inc. spokesman Anthony Harrison said in a Feb. 21 email to Bloomberg Law. “This proposal is disappointing, especially since those who hold H4 are here legally but their ability to work is being withdrawn,” he said.
The H-4 work permit is “a product of the excessive delays in per-country immigrant visa backlogs for many of the countries from which our employees and their families are from,” according to a statement from Intel Corp. provided to Bloomberg Law Feb. 21. The backlog “can be hard on individuals waiting to get their green cards, especially if they live in high cost areas such as Silicon Valley,” the company said.
Rather than revoking the work permits, the administration could eliminate the need for them by recycling unused green cards from prior fiscal years, Intel said. Congress also could pass legislation to end per-country caps on employment-based green cards.
“We are disappointed to hear of efforts to eliminate the H-4 EAD program as it is our responsibility to protect and advocate for all our employees and their families,” Francine Katsoudas, Cisco’s executive vice president and chief people officer, said in a statement provided to Bloomberg Law Feb. 21. “If we want to see continued innovation and economic growth, we must have an environment where families feel they are supported.”
“The H-4 rule represents a valuable but targeted opportunity for us to not just attract and retain talent, but to promote immigration to the United States on the basis of one’s skills and merit,” according to a 2018 letter to the USCIS from several employer groups, including the U.S. Chamber of Commerce, the Information Technology Industry Council, and Compete America, a pro-immigration employer coalition.
The actual regulation has been long in coming, in part because of changes that required the USCIS to conduct a new economic impact analysis.
The case had been put on hold because of the USCIS promise that it was ending the program but was reopened in December after the proposal didn’t emerge. The lawsuit is currently on appeal from a 2016 federal district court ruling finding nothing wrong with the program.
John Miano, the attorney who brought the lawsuit, said he’s surprised that the agency went ahead with the revocation proposal.
“They could just let the courts kill it at this point,” he said in a Feb. 21 email to Bloomberg Law. Issuing a regulatory proposal to end the program would allow the USCIS to make an argument that the lawsuit should be thrown out as moot, he said.
Briefs are due to the appeals court in mid-March. It was expected that the USCIS would push through the regulation ahead of that deadline to avoid having to defend the program in court.
“USCIS continues reviewing all employment-based visa programs, including H-4 EADs,” USCIS spokeswoman Jessica Collins said in a Feb. 21 email to Bloomberg Law. “No decision about the regulation concerning the employment eligibility of certain H-4 spouses is final until the rulemaking process is complete,” she said.
That process includes publishing the proposed regulation, allowing the public to comment, and then issuing a finalized regulation that takes those comments into consideration.
The agency is continuing to review all employment-based visa programs against the backdrop of President Donald Trump’s Buy American and Hire American executive order, Collins said.
About 96 percent of H-4 EAD holders have at least a bachelor’s degree and 29 percent studied at a U.S. college or university, according to results of a survey conducted by SaveH4EAD, a group dedicated to preserving the work program. More than half (57 percent) have lived in the U.S. for at least five years and 30 percent have worked in the U.S. for three or more years.
Save Jobs USA, a group of displaced U.S.-born tech workers who sued to stop the program, say it’s unfairly increasing job competition for them. A federal judge in Washington disagreed, but Miano says they haven’t been given a chance to prove their case.
USCIS Director L. Francis Cissna told Bloomberg Law in an exclusive interview in October that he believes the program is beyond the agency’s authority to implement.
Immigration advocates disagree and have promised to sue the administration once the new regulation becomes final.