As lawmakers take pre-emptive step to save it, leading attorney says H-4 work authorization not in immediate danger

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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.

A man exits the transit area after clearing immigration and customs on arrival at Dulles International Airport in Dulles, Virginia, U.S., September 24, 2017. REUTERS/James Lawler Duggan/Files

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.

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.”

Redbus2us.com, which tracks the skilled worker visa’s progress on all fronts, says there is a “lot of wrong information/Fake News reported by many mainstream Indian News papers online saying that the US Govt begins removing H4-EAD (sic) … This is false information, nothing new …”

According to Eshoo and Lofgren, the H-4 Employment Protection Act prohibits the Trump Administration from revoking the pre-existing rule.

Indian spouses on H-4, have taken a lead in lobbying for keeping their work authorization, arguing they contribute to the American economy and that they form a relatively small group that does not take away American jobs, especially in this booming economy.  Also, Immigration Voice, which represents thousands of  Indians on H1-B visas, is engaged not just in advocacy, and lobbying for removing the 7 percent country cap on high skilled visas, but also in a lawsuit filed by Save Jobs USA, an organization actively working to do away with high skilled visas including the H-4.

An analysis in The Washington Post on March 27, called the reasoning behind doing away with H-4EAD, “a lousy rationale.”

“Our research shows that this proposal would not create a single net job, and it would also cost the U.S. economy – and taxpayers – billions of dollars a year in lost revenue and reduced economic growth. It will also likely force immigrants – actively encouraged, up to now, to move here — to uproot themselves,” writers Ike Brannon and Kevin McGee concluded.

Conclusions they drew from the 5,000 respondents on H-4EAD showed most of the H-4EADs were in occupations tied to technology or engineering; almost half were employed in IT-math-stats occupations, “which have chronic worker shortages,” the authors noted. Furthermore, most of the areas where these spouses got employment, had very low unemployment rates nationally.

The Brannon-McGee analysis also showed that if those who have the employment authorization, lost their jobs, those positions would “mostly go unfilled.” In addition, their responses showed that some 2 percent of H-4 workers had started their own businesses, employing five workers each on average. “Since their employees’ jobs would also be lost if the H-4 employers could not work, these jobs that would be lost by U.S. workers would almost exactly offset any employment gains from filling empty H-4 jobs,” Brannon and McGee concluded.

Under the Twitter handle – Save H4EAD and other variations on the theme – groups of mostly Indian-Americans, have highlighted the contributions made by women who have secured jobs under the Obama regulation. Alongside, they have been part of the ongoing bipartisan effort on Capitol Hill to pass a bill “Fairness for High-Skilled Immigrants Act” which strives to remove the 7 percent country cap on H-1B visas, to level the playing field, especially affecting Indians, 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.

Congresswoman Anna Eshoo, D-California (Photo: Congressional website)

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.”

Congresswoman Zoe Lofgren, D-California. (Photo: Congressional website)

“Nobody benefits from this system, least of all the American economy, when H-1B dependent spouses are prohibited from working,” said Rep. Lofgren, adding, “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.”

The two lawmakers had along with 13 others, sent a letter to DHS Secretary Kirstjen Nielsen, in March 2018, urging her to reconsider her agency’s proposal to revoke eligibility for employment authorization to H-4 dependent spouses. They had introduced the current bill in November 2018.

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