US Lawmakers take pre-emptive step to save H-4 work authorization

US Lawmakers take pre-emptive step to save H-4 work authorization

Two Congresswomen from California have re-introduced legislation May 29, to protect the much-treasured work authorization for spouses on H-4 Visas, which affect mostly women from India. But even as the Trump administration has warned it is moving toward revoking the privilege, a leading attorney who was behind drafting the Obama-era rule, says the right to work is not going anywhere fast.

Representatives Anna G. Eshoo and Zoe Lofgren, both Democrats, reintroduced the “H-4 Employment Protection Act,” in a renewed bid to prevent the Trump Administration from revoking an Obama-era rule that extends work authorization to certain spouses of H-1B visa holders, including thousands of immigrants in Silicon Valley. Indian spouses, mostly women, were the largest beneficiaries of the H-4EAD.

Currently, the H-4 EAD removal proposal is with the Office of Management and Budget which is reviewing it, and during which time stakeholders are allowed to meet with OMB. The publi comment period will begin after the proposal has been approved by OMB, and published in the Federal Register.

The introduction of such a legislation comes days after the Department of Homeland Security (DHS) said that it would publish this month the long-promised regulation that would prevent the work authorisation to spouses on H-4 visas. H-4 visas are issued to the spouses of H-1B visa holders, a significantly large number of whom are high-skilled professionals from India.

This week, the Trump administration announced plans to overturn current the DHS regulations that allow certain H-4 dependent spouses of H-1B visa holders who are stuck in green card backlogs to obtain employment authorisation, pursue their own professional goals and contribute to the US economy, said the lawmakers Anna G Eshoo and Zoe Lofgren.

Many H-4 visa holders are highly skilled professionals, and the DHS previously extended eligibility for employment authorisation to them recognising the economic burdens of families of many H-1B workers, particularly those who live in high cost areas like Silicon Valley on a single income as they await green card approvals, they said.

Since the rule was implemented, over 100,000 workers, mainly women, have received employment authorization, and the H-4 Employment Protection Act prohibits the Trump administration from revoking this important rule. “H-4 visa holders deserve a chance to contribute to their local economies and provide for their families,” Eshoo said.

“This is a matter of economic fairness and this legislation ensures it will continue,” she added. H-4 visa holders had obtained work permits under a special order issued by the previous Obama administration. Indian-Americans were a major beneficiary of this provision.

More than one lakh H-4 visa holders have been beneficiary of this rule. “While the Trump administration sits on its hands and does nothing, American citizens in-waiting are stuck in line for their number to come up,” Lofgren said.

“Nobody benefits from this system, least of all the American economy, when H-1B dependent spouses are prohibited from working. Many of these are accomplished and qualified individuals whose skills we’ll lose to other countries unless the Administration finds a more sensible approach to immigration,” she said.

Since the work authorization rule was implemented in 2015, according to various estimates, around 70,000 to 100,000 workers, mainly high-skilled women from India, have received employment authorization.

According to Doug Rand, founder of boundless.com, an firm that says its mission is to help immigrants “navigate the immigration system more confidently, rapidly, and affordably”, the demise of H4-EAD, is not on the near horizon. Rand was Assistant Director for Entrepreneurship, in the Obama White House Office of Science & Technology Policy, and played a key role in drafting the H-4EAD rule.

Doug Rand, co-founder and president of Boundless Immigration, and former Assistant Director for Entrepreneurship in President Obama’s White House Office of Science & Technology Policy. (Photo: LinkedIn)

“It’s important to understand that the administration hasn’t even officially started the process of eliminating work permits for H-4 visa holders,” Rand told News India Times in an email response to a query. Rand was one of the principal drafters of the Obama-era rule that created the EAD.

“The first step, a “proposed rule,” is expected within the next few months, typically followed by a two-month period for public comments,” Rand said. “Then USCIS must process all of these comments (which will probably number in the tens of thousands), formulate a response, and publish a “final rule.” Only then will H-4 work permit applications and extensions be prohibited going forward.”

According to Rand, “This whole process, start to finish, will probably take 6 months at the very least, and usually takes over 12 months.” He predicts there will “almost certainly” be lawsuits seeking to freeze the USCIS final rule while the litigation makes its way through the courts.

“Therefore it’s safe to conclude that (a) nobody with a current work permit is going to lose it until it expires, (b) any prohibition of new H-4 work permit applications and extensions is probably at least 6 months away, and (c) there’s a reasonable chance that the courts will preserve H-4 EADs in the long run.”

The H.R. 1044, Fairness for High-Skilled Immigrants Act, if passed, would cut the decades of wait times for skilled immigrants who are stuck in the green card backlog by eliminating the caps.

Bill 1044, which has 297 co-sponsors as of now and has been referred to the Subcommittee on Immigration and Citizenship, increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas, apart from other stipulations.

Meanwhile, on the H-4EAD protection bill, Eshoo and Lofgren pointed to the rationale for the work authorization, noting that it  recognized the economic burdens  that families of many H-1B workers, particularly those who live in high cost areas like Silicon Valley on a single income, while in the green-card pipeline.

“H-4 visa holders deserve a chance to contribute to their local economies and provide for their families,” Rep. Eshoo is quoted saying in a May 29 press release. “This is a matter of economic fairness and this legislation ensures it will continue.”

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