Why Aren’t Foreign Skilled Workers’Spouses Working?

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By Laura D. Francis

Oct. 4 — Rashi Bhatnagar, a journalist in her native India, came to the U.S. in 2009 on an H-4 visa and was “totally shocked” that she couldn’t legally work.

The visa is reserved for the dependents of workers on H-1B visas, the temporary, skilled visas popular among tech giants like Microsoft Corp. and Google Inc. Unlike the dependents of other skilled temporary workers, foreign nationals on H-4 visas couldn’t apply for work permits until very recently.

The disparity was “really bizarre,” Bhatnagar told Bloomberg BNA Oct. 5.

So she started a Facebook group in 2011 called “ H4 Visa, A Curse” as a way to connect with other H-4 visa holders experiencing the same frustration. The Facebook group now has more than 15,000 followers, and her related blog is up to 5,000 readers.

Regulations Issued Last Year

Bhatnagar also worked on a White House petition to get work permits for H-4 dependents. That and other advocacy efforts culminated in 2015 Department of Homeland Security regulations granting work permits to a subset of H-4 visa holders: the spouses of H-1B visa holders who have started the process of obtaining an employment-based green card.

Because of overall annual limits on permanent visas, coupled with limits based on an immigrant’s country of origin, H-1B workers from populous countries, such as India and China, can wait years or even decades for their green cards. Under the old regimen, their spouses couldn’t work that entire time.

“There are so many people who have been stuck for so many years,” Bhatnagar said, and those are H-4 visa holders with their own marketable skills.

A survey of 400 H-4 spouses that Bhatnagar’s blog conducted between May and July 2014 showed that 99 percent held a bachelor’s degree or higher, 83 percent were between the ages of 26 and 35, and 95 percent were women. Their professional backgrounds include medicine, engineering, education, architecture, accounting and law.

Only 37 Percent Have Applied

The DHS estimated that as many as 179,600 H-4 spouses would be eligible to apply for work permits during the first year. To date, however, only 66,571 applications have been filed and 58,232 approved, according to figures provided to Bloomberg BNA Sept. 30 by U.S. Citizenship and Immigration Services, the DHS agency that handles the applications. That’s about 37 percent of the eligible population.

Why the disparity?

“Not everyone’s spouse is interested” in an employment authorization document “or needs an EAD,” Marketa Lindt, the American Immigration Lawyers Association’s second vice president, told Bloomberg BNA Oct. 4.

For one thing, “there are people in H-4 status who are doing things other than working, and have been, including taking care of families,” said Lindt, who practices with Sidley Austin in Chicago.

Bhatnagar herself hasn’t applied yet. For her, having a “career gap” of eight or nine years, and now a small child to take care of, means getting a job has taken a “back seat.”

Fear Factor

Fear may also be a motivator.

Soon after the regulations came out, a group of U.S. information technology workers challenged them in court. The workers, who purportedly were displaced by H-1B workers, claimed that the regulations unfairly create job competition by injecting additional foreign workers into the labor force.

A federal judge in Washington, D.C., tossed the lawsuit Sept. 27. There is no proof that H-4 spouses who obtain work permits actually would work in IT, and therefore no proof they would directly compete with the U.S. workers who brought the case, the judge said. The U.S. workers are appealing the decision.

Many potentially eligible H-4 spouses feared that the regulations would get overturned by the lawsuit, Newark, California, immigration attorney Shah Peerally told Bloomberg BNA Oct. 5. If H-4 visa holders got their work permits and started a job, it would go out the window if the regulations were shot down in federal court, he said.

Some H-4 visa holders also were getting messages from U.S. workers who said they were trying to take away their jobs, he said.

“Many anti-immigrant groups have been trolling by posting sexually explicit as well as racist remarks against H4 visa holders,” Bhatnagar said on her Facebook page Oct. 4. “It is awful.”

Election Concerns

Politics has since taken over as a source of concern, Peerally said. Right now “the biggest fear is the election” and concern that Republican presidential candidate Donald Trump will do away with this regulation and other Obama administration actions, he said.

On the other hand, “you might see a surge in applications after November” if Democratic presidential contender Hillary Clinton wins the election, he said.

It doesn’t help that many would-be H-4 work permit applicants are taking the advice of online forums that aren’t run by immigration attorneys, Peerally said. The forum operators are “writing a lot of nonsense to get traffic,” he said.

For example, some forums drummed up fear about the U.S. workers’ lawsuit by saying that H-4 visa holders who obtained work permits would be personally implicated if the case were successful, Peerally said.

Many work permit applicants don’t seek legal advice, and so they wind up relying on these forums instead, he said.

Other Avenues for Work

And “there are other avenues for some people to apply” for work permits, Lindt said. For example, immigrants seeking EB-3 visas—which go to skilled and professional workers—now can get them pretty quickly if they’re not from China or India, she said.

A work permit obtained after an immigrant applies for adjustment of status—i.e., seeking a green card from within the U.S.—"is a lot better than an H-4 work permit,” Peerally said. “It’s a lot harder to take away that work permit” because there are more protections for immigrants who have filed their green card applications than for temporary workers, he said.

The October 2015 Visa Bulletin also changed things, Peerally said.

The Visa Bulletin, issued by the State Department each month, indicates when permanent visas are available in each of the various categories.

The October 2015 bulletin, released in September 2015, listed earlier dates that immigrants could apply for their green cards than what had been the case. About two weeks later the agency scaled back the number of people who could apply, resulting in a situation that came to be known as “Visagate.” Litigation over that shift so far has been unsuccessful.

But there were still about 50,000 or 60,000 immigrants who were still able to apply earlier than originally thought, Peerally said. That means their spouses could get adjustment of status work permits instead of H-4 work permits, he said.

Less Common Factors

Although less common, some H-4 visa holders may not be able to apply because their spouses no longer have a valid I-140, the petition an employer must file to sponsor a worker for a green card, Peerally said. Immigrant workers with approved I-140 petitions can change jobs in certain circumstances, but the employer can and sometimes will withdraw the petition if the immigrant no longer works there, he said.

Applying for an EAD also is costly, another possible deterrent, Lindt said. Right now, it costs $380 to apply for an EAD, and that could rise to $410 under a recent proposed change to USCIS fees.

Moreover, “people who need immediate work authorization don’t necessarily find this to be an appealing process,” she added. That’s because work authorization isn’t immediate: it takes about three months to get the actual work permit after applying for it.

Someone who gets a job offer may find that his or her future employer isn’t willing to wait that long, she said.

Would giving work permits to all H-4 spouses be more of a help? “I would love to see that,” Peerally said, but it would amount to about 1.5 million people with newly granted work authorization.

That would create “political havoc” that the Obama administration likely wouldn’t want to contend with, he said. “The goal was, keep it to those who were suffering for years” because of green card backlogs, he said.

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

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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