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The fate of some 200,000 foreign citizens living and working in the U.S. — many of them in the Bay Area — is resting with the U.S. Department of Homeland Security, the Trump White House and a federal appeals court.
At issue is work authorization for holders of the H-4 visa, who are spouses of foreign nationals employed in the U.S. under the controversial H-1B visa. Homeland Security this week updated the schedule for a new rule removing that authorization, saying it would publish the proposed rule this month.
University of Tennessee researchers have estimated that 100,000 people, mostly Indian women, have the work authorization. Several Indian women from the Bay Area have told this news organization that if they can’t work, they and their families will leave the country rather than lose one income stream and their careers.
Spouses of H-1B workers on track for green cards have been allowed to work in the U.S. since 2015, when Homeland Security under the administration of former President Barack Obama published a new rule, first proposed in 2011, authorizing their employment.
“Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies,” the agency said in proposing the rule.
Under the administration of President Donald Trump, Homeland Security has changed its messaging on the work authorization. In proposing to strip the right to work from the H-4 visa holders, the agency said in an online notification late last year that, “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.”
The move by Homeland Security is part of a broader crackdown by the Trump administration on the H-1B visa. Silicon Valley’s tech industry, including large firms such as Google, Facebook and Apple, rely heavily on the H-1B and have pushed for an expansion of the annual 85,000 cap on new visas, arguing it’s necessary for securing the world’s top talent. Critics point to reported abuses by outsourcers, and contend that the visa is used to supplant U.S. workers with cheaper foreign labor, and to drive down wages.
Under Trump’s “Buy American and Hire American” executive order, federal authorities have dramatically boosted the rates of H-1B denials, and demands for more evidence that workers and jobs qualify for the visa. The administration has tweaked the lottery through which H-1B visas are granted, to favor more highly educated foreign graduates of U.S. colleges and universities.
While Homeland Security has said in this week’s notice it will publish its proposed rule this month — which is expected to trigger a public comment period before any final approval — the agency has several times missed its own deadlines for publication since first proposing cutting the work authorization in 2017.
According to Sarah Pierce, an analyst at the Migration Policy Institute who studies the H-1B and H-4 visas, reports suggest Homeland Security’s proposed rule is awaiting approval from the White House’s Office of Information and Regulatory Affairs, which is part of the Office of Management and Budget.
If the White House approves the proposed rule, it could be published soon after, Pierce said, but she doesn’t anticipate that would happen this month, as the Homeland Security notification indicates. More likely, the proposed rule will be published this summer, Pierce said.
Bay Area software engineer Ranjana Varadarajan, an Indian citizen on the H-4 visa, said the prospect of losing her right to work makes her worried about her professional future. “In the tech industry we should not have any gaps in our career,” she said. “We have to keep updating ourselves.” If the government bans her and other H-4 holders from employment, she will have no other choice but to leave the U.S. and live apart from her husband because she won’t give up her career, Varadarajan said.
Meanwhile, a lawsuit moving through federal courts and attacking the H-4 work authorization remains a complicating factor. In the legal action against Homeland Security, a group of former workers of the Southern California Edison utility who claim they were replaced by H-1B holders argue that the agency overstepped its authority in 2015 when it began allowing H-4 visa holders to work. Thrown out by a federal district court in 2016, the case by the group “Save Jobs U.S.A.” is now in the U.S. Court of Appeals in the District of Columbia.
John Miano, the lawyer for the plaintiffs in that case, noted that although H-1B workers are bound by restrictions on where they can work, what jobs they can do, and for how long, H-4 holders lack such limitations.
“That completely undermines the protections for American workers in the system,” Miano said.
Miano, and immigration advocates on the other side of the H-4 dispute, agree that legal challenges are likely to follow any ban on employment for H-4 holders.
