Termination of Work Authorization for H-4 Visa Holders put on hold

The Department of Homeland Security issued a court filing on February 28th, stating it would not issue a new rule terminating work authorization for H-4 visa holders until June because it needed to review the economic impact of terminating the program.

DHS had been expected to issue a Notice of Proposed Rule Making – NPRM – in February, intending to revoke H-4 EADs. In 2015, the Obama administration granted work authorization to certain H-4 visa holders – about 100,000 women from India – whose spouses are on track to get legal permanent residency.

The Department of Homeland Security had announced on December 15, 2017 that it was proposing a rule that would end work authorization for H-4 visa holders, stripping more than 100,000 people – largely women from India – of their ability to legally work in the U.S. The DHS proposal has caused panic in the Indian American community, as H-4 visa holders with employment authorization could lose their ability to work as early as this summer.

Several groups had opposed this sudden move by the Trump administration. The Information Technology Industry Council, a major lobbying group for the tech industry, led a group of 10 IT organizations which sent a letter Jan. 17 to U.S. Citizenship and Immigration Services director Lee Francis Cissna supporting the continuation of work authorization for H-4 visa holders.

In its letter to Cissna, ITIC and the co-signers noted: “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. Rescinding this program would harm America’s economic competitiveness and hinder efforts to recruit and retain the most qualified employees.”

“It is a function of the failure to reform our nation’s immigration system that this group of H-4 spouses — the majority of whom are women — continue to face uncertainty and may be prevented from working while they wait for bureaucratic backlogs to be cleared,” noted the organization in its letter to Cissna.

ITIC noted that in 2016 there were approximately 3.3 million STEM-related job openings posted online, but U.S. universities graduated 568,000 students with STEM degrees that year.

“To meet this job demand, it is vital that we not only provide STEM education and training to more U.S. children, workers, and college students, but that we also recruit the top talent from U.S. universities and from abroad. The H-4 rule is instrumental in allowing U.S. employers to fill these critical positions with qualified professionals,” stated ITI.

The organization Save Jobs USA filed a lawsuit in 2016, claiming that several computer workers for Southern California Edison had been replaced in 2015 by guest workers from India. The suit is currently being considered by the 9th Circuit Court of Appeals in Washington, DC.

In its filing, DHS noted: “DHS was working to issue an NPRM in February 2018. However in January 2018, United States Citizenship and Immigration Services (USCIS), the component of DHS responsible for oversight of the H-4 visa program at issue in this litigation, re-evaluated the rule and determined that significant revisions to the draft proposal were necessary.”

“Those revisions required a new economic analysis, which required an additional several weeks to perform. The changes to the rule and the revised economic analysis require revisions to the projected timeline for the NPRM’s publication, and therefore cannot be issued in February.”

“Under the revised timeline, DHS anticipates submitting to the Office of Management and Budget for review and clearance the proposed rule in time for publication in June 2018. DHS’s intentions to proceed with publication of an NPRM concerning the H-4 visa rule at issue in this case remain unchanged,” stated the agency in the filing with the United States Court of Appeals for the District of Columbia.

In a recent survey, sampling more than 2,400 H-4 visa holders who currently have work authorization. 59 percent have postgraduate or professional degree and above and 96 percent have a bachelor’s degree and above. 43 percent purchased a home after receiving work authorization. 35 percent of them bought a home over $500,000. 49 percent have annual individual income of over $75,000. 18 percent have over $100,000 annual income. 60 percent pay taxes of more $5,000. Five percent have started their own businesses, creating employment for American workers.

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