NEW YORK: The Employment Authorization Document (EAD) for certain H-4 visa holders is likely to be revoked by the Trump administration, or major changes made to the existing rules to restrict the ability of spouses of H-1B visa workers to legally work in the country, well before the September 27, 2017 dateline that the Department of Homeland Security asked United States District Court for the District of Columbia, earlier this month.
On April 3, the Trump administration asked for a period of 180 days’ time for the Department of Homeland Security (DHS) to deliberate on new rules to be made for the work permits known as EAD issued to eligible H-4 visa holders. Lawyers for the US government also informed the court that they will update the court every 60 days concerning the review process by the DHS, and if they have determined their course of action before the 180 days, they will then do so.
The Trump administration plans to hold a public comment period on the issue, and then have the same reviewed by the USCIS before reaching a decision. Since the same procedure was followed by the Obama administration two years ago, to grant the EAD, it seems that the Trump administration is playing a cruel joke on the H-4 visa holders by conducting the same procedure, with the likely intention of revoking the EAD.
If the Trump administration were not interested to make changes as demanded in the lawsuit by Save Jobs USA, then it would have said so on April 3, 2017. However, it’s clear now that the Trump administration want to bolster their case by getting plenty of comments from anti-immigration advocates and those against granting work permits to H-4 visa holders.
On the other hand, it’s time again for H-4 visa holders to make their case by sending in their comments on why they need to be given a chance to work.
For now, no date has been set for the comment period. Save Jobs USA had rejected the demand of DHS for more time till Sep. 27, 2017, for it to proceed with the case. The court has to decide if it wants to allow DHS that time-period or not.
It’s likely if the court gives the go-ahead, then the next move by the Trump administration would be to hold a public comment period. This could happen sooner than the 60 days’ it had asked for on April 3. Once that process begins, new rules could be finalized within two months’ time.
The cautious way Trump administration is proceeding on the H-4 visa issue indicates it’s highly wary of losing face in court, and thus taking their time to strengthen their case. In the past, they have lost in several courts on the travel ban.
It’s also likely that the Trump administration is waiting for reforms to the H-1B visa.
If new legislation passes that would increase the minimum salary to at least $100,000, they would be in a stronger position to argue that spouses of H-1B workers would not feel financially burdened, since the spouse would be making good money, with that six-figure salary above the national household income average.
For now, H-4 visa holders may either be disheartened or confident looking at past rulings by the judge overlooking the case, District Judge Tanya S. Chutkan.
Although Judge Chutkan sided with the Obama administration in her past ruling on the H-4 visa EAD rule, she made it clear that she had sympathy for H-4 visa workers, and that the Save Jobs USA lawsuit lacked merit.
In her 2015 ruling on the lawsuit by Save Jobs USA, Judge Chutkan wrote in her 12 page ruling that the negative effect, or damage to American technology workers from employment authorization document issued to spouses of foreign guest workers was “highly speculative.”