Trump Administration argues in favor of EAD for H-4 visa holders

SAAPRI flyer/email relating to its online survey launch on H-4 visa holders. (Photo: South Asian American Policy & Research Institute)

Despite a spate of recent executive orders from the White House to stop legal immigration into the United States, especially Green Cards and work visas, the Trump Administration has taken a lenient view of Employment Authorization Document (EAD) for H-4 visa holders (work permits given to some spouses of H-1B workers), arguing before a court this week that they should not be revoked after a lawsuit filed by the organization Save Jobs USA.

The Department of Homeland Security (DHS) appealed to the US District Court, District Washington, not to do away with the earlier Obama-era law that allowed some spouses of H-1B visa holders to be allowed to work in the US, according to a report in The Economic Times.

An H-4 visa is issued by the U.S. Citizenship and Immigration Services (USCIS) to the immediate family members (spouse and children under 21 years of age) of the H-1B visa-holders. The EAD is given to certain spouses of an H-1B worker who is in an advanced stage of seeking permanent residency.

DHS argued before the court that the lawsuit by Save Jobs USA does not make it clear that the EAD takes away jobs from American technology workers.

The Trump Administration was arguing on behalf of the H-4 visa holders in response to a 2015 lawsuit filed by Save Jobs USA, an advocacy group, which had argued that the H-4 EAD harmed American technology workers.

The DHS countered saying that Save Jobs USA members had not been ‘irreparably harmed’ by giving work permits to H-4 visa holders, and their allegations were mere ‘speculations’.

“Save Jobs’s claim of irreparable harm relies on the H-4 Rule eliminating or significantly reducing employment opportunities, meaning that the number of available information-technology jobs would significantly decline due to the H-4 Rule. But, this relationship has not been shown to be “certain” and “actual,” rather than merely “theoretical”,” the administration argued.

The court has yet to give a decision in the case.

After coming to power, the Trump administration in December 2017 informed the court that it plans to rescind the Obama-era regulations that allowed H-4 visa holders a work permit. A PTI report said, since then, it told the court about half-a-dozen times about its intention to issue a Notice of Proposed Rulemaking, to amend the laws.

Interestingly, the new stance by the DHS is in reverse to what it had earlier suggested: a March 2020 deadline to introduce a ban on work authorization for spouses of H-1B visa holders. Reportedly, at least 100,000 Indian families stand to benefit if the court rules in its favor to retain the right to work for H-4 visa holders.

As of December 2017, the USCIS had approved 1,26,853 applications for employment authorization for H-4 visa-holders. According to a 2018 report by the Congressional Research Service, 93% of approved applications for H-4 employment authorization were issued to individuals born in India and 5% to individuals born in China.

An earlier report in Quartz had noted that there is a significant shortage of qualified workers in science, technology, engineering, and mathematics fields in the US. Indians, who receive three-quarters of the H-1B visas every year, help employers fill this gap.

The H-4 workers, too, are a meritorious addition to the talent pool for the most part. Nearly 60% of those living in the US as dependents of their spouses have professional or graduate degrees of their own; 49% have an individual income upwards of $75,000, a survey of over 2,400 people by advocacy group Save H4 EAD revealed.




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