H-1B Spouses Face Uncertainty with New H-4 EAD Decision
The fate of H-4 EAD, which allows the spouses of H-1B visa holders to work, is still up in the air after the U.S. Court of Appeals for the District of Columbia Circuit kicked a decision over the program’s cancelation back to a lower court.
Save Jobs USA, the tech-workers advocacy group that filed the lawsuit at the core of the case, suggests that the H-4 EAD could result in employment for 180,000 spouses of H-1B holders, resulting in increased (and unfair) competition for tech jobs. The lawsuit argues that the federal government overstepped its bounds in establishing H-4 EAD.
The court’s ruling seemed to agree with the lawsuit’s position, stating: “The rule will increase competition for jobs.” However, those who possess the H-4 EAD can continue to work, at least for now. A new court ruling, or the introduction of new government regulation, could still kill the program.
H-4 EAD, H-1B Both Squeezed
Earlier this year, U.S. Citizenship and Immigration Services (USCIS) suggested that ending H-4 EAD would prove “economically significant,” and ultimately benefit American workers:
“Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”
However, the federal government is still reviewing its plans to potentially terminate H-4 EAD (the original deadline for a decision was Spring 2019, which passed). In the meantime, it has made the application process far more challenging: as of February 2019, anyone applying for the H-4 EAD needs to undergo biometric screening.
Meanwhile, the H-1B itself has been the focus of tightening government policy. Through the third quarter of fiscal 2019, denial rates for H-1B petitions have skyrocketed to 24 percent, according to a new analysis of USCIS data by the National Foundation for American Policy (NFAP).
“In the first three quarters of FY 2019, USCIS adjudicators denied 24 percent of H-1B petitions for ‘initial’ employment and 12 percent of H-1B petitions for ‘continuing’ employment,” read the NFAP report (PDF). “The 12 percent denial rate for continuing employment is also historically high—4 times higher than the denial rate of only 3 percent for H-1B petitions for continuing employment as recently as FY 2015.” (A brief note on definitions: ‘initial employment’ means H-1B petitions for new employment, whereas ‘continuing employment’ is typically an extension for an existing employee.)
But that hasn’t stopped some of the country’s biggest tech companies from petitioning for H-1B visas—and subcontracting H-1B workers from services firms. Earlier this year, we analyzed a massive dataset from the U.S. Department of Labor on H-1B data for fiscal year 2019. Here’s what we found: ‘primary’ denotes direct H-1B petitioning, while ‘secondary’ represents subcontracting:
Despite occasionally expressing support for legal immigration, the Trump administration is imposing restrictions on it, denying and delaying more applicants for H-1B skilled-work visas and proposing to raise costs for people seeking asylum, citizenship and green cards.
Costs: The Department of Homeland Security wants to increase fees by a weighted average of 21%, according to a Federal Register notice it published last week. The public has 30 days to comment.
“This proposed adjustment in fees would ensure more applicants cover the true cost of their applications and minimizes subsidies from an already overextended system,” immigration hard-liner Ken Cuccinelli said in a statement. Cuccinelli was acting director of the U.S. Citizenship and Immigration Service when the statement was issued this month; last week he was named acting deputy secretary of the Department of Homeland Security, according to BuzzFeed News.
It’s very clear that a policy objective of this is to erect significant new barriers for asylum seekers, green card applicants and citizenship applicants,” said Doug Rand, who worked on immigration policy in the Obama White House as assistant director for entrepreneurship, and is now the co-founder of Boundless Immigration, a Seattle technology company that helps immigrants obtain green cards and citizenship. He called the move “a weaponization of government fees.”
Fee increases could also apply to permit renewals for some 660,000 people who were brought to the U.S. without official permission as minors — if Deferred Action for Childhood Arrivals, the program allowing them to stay here, survives the Trump administration’s current attempt at the U.S. Supreme Court to have it repealed.
The change would particularly affect vulnerable immigrants — those who are low-income or asylum seekers, Rand said. It would mark the first time the U.S. requires people fleeing persecution to pay fees. Iran, Fiji and Australia are the only other nations that do so.