Trump administration has plans to wipe out work permits for H-1B spouses
The Trump administration plans to stop granting work permits to spouses of H-1B holders, overturning a 2015 rule and affecting thousands of foreigners currently in the United States, according to sources who have spoken to The Chronicle about the move.
About 130,000 spouses and children of H-1B visa holders came to the U.S. on H-4 visas last year, a number that has been steadily increasing since 2012. Before President Barack Obama created a work permit for certain H-4 visa holders in 2015, these foreigners — often women — were not allowed to hold a job here or be issued a Social Security number.
From October 2015 to September 2016, 41,526 people received authorization to work under the program. Complete figures for the most recent fiscal year, which ended in September, are not yet available.
The impact on the Bay Area could be outsized. Silicon Valley heavily relies on H-1B visa holders to staff technical positions; Facebook has so many it is deemed “dependent” on the visa by the government. Many brought spouses with them on H-4 visas. In recent years, those spouses have been able to seek work — a key economic support in a region where it’s difficult for families to get by on one salary.
Losing the H-4 work authorization may have a domino effect, as couples may be less inclined to stay in the U.S. if both cannot work, said Emily Neumann, an immigration attorney.
“Those who are here and waiting for so long may just get tired and might leave,” Neumann said. “Why not go to Canada where they feel more welcome?”
But critics of the program say rescinding the work permits will help preserve American jobs.
The Department of Homeland Security is facing a lawsuit that challenges the right of H-4 visa holders to work in the U.S. The plaintiff, a group of technology workers called Save Jobs USA, says the government should not have the ability to grant work permits to immigrants through a rule rather than congressional approval. The administration used a similar argument to rescind the Deferred Action for Childhood Arrivals program and delay the International Entrepreneur Rule.
John Miano, an attorney for Save Jobs USA, said the president should not have such power over foreign work permits.
“We would hope that (the regulation) would have some acknowledgment that the original employment authorization was unlawful,” he said.
The administration has delayed making a decision in the case since February. But in the meantime, it has been drafting a new regulation to rescind the H-4 work authorization, according to sources familiar with the matter who asked not to be identified in order to speak freely about the administration’s plans.
It is unclear how the administration would end issuance of work authorizations. A draft is circulating within the government, sources said, but its provisions are not known and could change.
A spokeswoman for United States Citizenship and Immigration Services said the agency was “not at liberty to discuss any part of the pre-decisional processes.”
Immigration experts have widely expected the administration to end the H-4 work authorization since President Trump took office — especially in light of a recent motion filed by government lawyers in the Save Jobs USA case that cites the president’s “Buy American and Hire American” executive order. That order requires reviews of existing immigration policies in the interest of protecting American jobs.
“The court deadline for the H-4 litigation is fast approaching,” Lynden Melmed, former chief counsel of United States Citizenship and Immigration Services, said in an email. “That means the government is far along in finalizing a regulation, and at every stage they have signaled a desire to rescind the work authorization for all H-4 spouses.”
Melmed, now a partner at Berry Appleman & Leiden who oversees the immigration law firm’s government-affairs practices, said he and his colleagues are warning clients that a decision on the H-4 work authorization is imminent.
The next court deadline is Jan. 2.
The majority of H-4 visa holders are women who decided to come to the U.S. with their spouses to keep their families together, and perhaps start their own path to permanent residency. An H-4 visa holder is only eligible for a work permit if their spouse has been approved for a green card.
This work authorization is particularly helpful for spouses from India and China. Because of the high numbers of immigrants seeking permanent residency in the U.S. from those countries, the wait for a green card for Indian and Chinese nationals can be more than a decade. Doug Rand, former assistant director for entrepreneurship in the Obama White House who helped implement the H-4 work authorization rule, said the Obama administration created the regulation to help “Americans-in-waiting.”
“Fortunately, Congress gave the executive branch the authority to let these spouses get a job or start a business if they can — putting their considerable education and talents to work for our economy during the excruciatingly long and unconscionable wait for a green card,” said Rand, who now is the co-founder of Boundless, a Seattle startup that helps people navigate the immigration process.
Despite the lawsuit, H-1B spouses are still able to apply for work permits. Even if the Trump administration decides to unravel the rule, such an action would require a lengthy notice-and-comment period, a requirement that has hindered other efforts by the administration to swiftly revoke Obama-era rules.
Many H-4 visa holders previously interviewed by The Chronicle said they dread the idea of going back to forced unemployment. Karishma Chawla of San Jose, who immigrated with her husband from India, said she felt “trapped” by her visa during the seven years she wasn’t allowed to work.
But ever since she got a work permit, Chawla said her life has taken a turn for the better.
“It was going pretty well,” she said Friday, shortly after finishing her workday. “But now I’m really unsure of what is going to happen.”