U.S. Appeals Court Upholds Work Authorization for H-1B Spouses, Benefiting Indian Tech Workers

An appeals court in the United States has upheld a federal rule allowing spouses of H-1B visa holders to work in the country, a decision that has been met with relief by many in the tech community. The U.S. Court of Appeals for the District of Columbia Circuit made this ruling, dismissing a challenge by Save Jobs USA, a group representing American-born tech workers. This judgment maintains the “Employment Authorization for Certain H-4 Dependent Spouses” regulation, which was introduced during the Obama administration and has been in effect since 2015.

Key Aspects of the Ruling

The Department of Homeland Security (DHS) implemented this rule under President Obama in 2015. It permits certain spouses of H-1B visa holders, who are in the U.S. on H-4 visas, to seek employment. This ruling came after Save Jobs USA appealed a March 2023 decision that favored the rule. The appeals court justified its decision by citing precedent and affirming the DHS’s authority to implement such a regulation.

Support for this rule has been strong among leading technology companies and business groups, which argue that it is vital for retaining highly skilled foreign professionals.

Overview of H-1B and H-4 Visas

The H-1B visa is a nonimmigrant work visa that allows U.S. employers to hire foreign workers with specialized skills, typically requiring at least a bachelor’s degree. H-1B visa holders are often employed in fields such as technology, engineering, finance, and architecture. This visa is crucial for the U.S. tech industry, which depends heavily on the expertise of foreign professionals.

The H-4 visa, on the other hand, is granted to the dependents of H-1B visa holders, including their spouses and unmarried children under the age of 21. This visa allows them to live in the U.S. while the primary visa holder works. In certain cases, H-4 visa holders can apply for work authorization, enabling them to seek employment in the country.

Eligibility and Process for H-4 Visa

To be eligible for an H-4 visa, applicants must be the spouse or unmarried child under 21 of an H-1B visa holder, have a primary visa holder in valid status, demonstrate financial support from the primary visa holder, and have no criminal record. The process involves determining eligibility, collecting necessary documents, completing the application, scheduling and attending a visa interview, and receiving the visa upon approval. The government filing fee for an H-4 visa is $205.

Legal Challenge by Save Jobs USA

Save Jobs USA, representing U.S.-born tech workers, argued that the DHS lacked the authority to permit H-4 spouses to work in the U.S. The group first challenged the H-4 employment authorization rule in 2015, but the case was put on hold during the Trump administration. Save Jobs USA contended that the rule posed a threat to American jobs and should be rescinded.

The court, however, rejected this argument, referencing previous litigation involving Optional Practical Training (OPT) for F-1 students. In that case, the court had interpreted the Immigration and Nationality Act (INA) in favor of DHS’s authority to regulate employment conditions for visa holders. “Save Jobs USA failed to provide a meaningful distinction between their case and the precedent, leading the court to uphold the district court’s summary judgment in favor of DHS,” Reuters reported.

Impact of Supreme Court Ruling

Save Jobs USA also argued that the Supreme Court’s ruling in the Loper Bright Enterprises v. Raimondo case, which limited the powers of federal agencies, should affect their lawsuit. The Supreme Court decision ended the practice of “Chevron deference,” where courts deferred to federal agencies’ interpretations of ambiguous laws they enforce.

The DC Circuit court acknowledged the Supreme Court ruling but clarified that their earlier decision was not solely based on Chevron deference. They also found that federal law clearly authorized the DHS rule in question. As a result, the Supreme Court’s ruling did not impact the appeals court’s decision to uphold the H-4 employment authorization regulation.

Support from the Tech Industry

The H-4 rule has garnered strong support from leading technology companies and business organizations. Firms like Google, Amazon, and Microsoft filed briefs with the lower court, arguing that allowing H-4 spouses to work would benefit the U.S. economy. They asserted that removing H-4 work authorization could harm the U.S. gross domestic product and drive talent and innovation to other countries.

The business community also emphasized that allowing H-4 spouses to work would encourage H-1B workers to pursue permanent residency (green cards), making it easier for companies to retain highly skilled employees. “This retention is important for maintaining the competitiveness and innovation of the U.S. tech industry,” these companies stated.

Implications for Indian Skilled Workers

The court’s decision has significant implications for the U.S. tech industry and its ability to attract and retain highly skilled foreign workers. By allowing H-4 spouses to work, the regulation helps create a more favorable environment for H-1B visa holders, who might otherwise be reluctant to relocate to the U.S. without their spouses having the opportunity to work.

Indian outsourcing firms are the leading users of H-1B visas, with half of the top thirty employers of H-1B visa holders in 2021 being outsourcing firms. This move is likely to be particularly beneficial to the spouses of H-1B visa holders, many of whom are from India.