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Proposed end of H-4 employment authorization likely to affect over 100,000 families

Time appears to be almost up for more than 100,000 foreign citizens working in the United States under an Obama-era special authorization for spouses of foreign workers here on the H-1B visa.

When Congress failed legislatively to address the lengthy wait times for many professionals and their families to be granted resident status, the US Citizenship and Immigration Services (USCIS) in 2015, under the Obama administration, issued a regulation to allow H-4 visa spouses of qualified H-1B professionals to apply for an employment authorization document (EAD). Some members of Congress complained that the executive branch was overstepping its authority by making law—which is Congress’s job—and the regulation was the subject of much debate during the last presidential election. Now the Trump administration is seeking to make good on the President’s campaign promise to eliminate EADs for H-4 spouses.

This change especially impacts US employers of people born in India.

The reason why Indian-born professionals are impacted is because there are numerical limits on the number of green cards granted each year. To promote the diversity of new immigrants to the US, there are quota limits on the place of birth. No more than 7 percent of the total number of family-sponsored and employment-based visas available in a fiscal year may be issued to natives of any one independent country. As the demand for Indian-born professionals is far greater than the annual supply of green cards under the quota, this has created a backlog.

In 2018 for instance, the backlog of Indian-born professionals waiting their turn to get a green card was well in excess of a half million individuals. As a result, it now takes many years for an Indian-born professional to receive his or her green card. As a consequence, Indian-born professionals comprise the bulk of H-4 EAD holders.

Under the current regulation, an H-4 spouse can request an EAD if the H-1B professional is the beneficiary of either an approved employment-based immigrant visa petition, or a Department of Labor alien employment certification application or employment-based immigrant visa petition filed at least 365 days prior to the end of the sixth year of the professional’s H-1B status.

In April 2017, President Trump signed the “Buy American and Hire American” executive order, which, among other things, directed the Department of Homeland Security (DHS), in coordination with other agencies, to review H-1B-related policies. The H-4 EAD regulation was one of the policies reviewed and the result was its proposed elimination.

US employers rely on H-1B professionals to make up for the shortage of qualified American professionals while keeping jobs in the US. CEOs of major US companies, sent a letter to DHS opposing the plan to eliminate the H-4 EAD. The letter pointed out that “[t]hese spouses are often highly skilled in their own rights,” and “revoking their US work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.

These US employers found some support in Congress. Senators Kamala D. Harris and Kirsten Gillibrand sent a letter to DHS and USCIS opposing rescission of the H-4 EAD, pointing out that the proposed change would disproportionately impact South Asian women (in 2017, 94 percent of H-4 EAD were women and 93 percent were from India).

But the administration has not changed its position. In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. DHS stated that “[s]ome 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, as the proposed rule would no longer allow H-4 workers to enter the labor market early.” With record low unemployment levels and US employers already complaining of recruiting problems, it is unclear where the DHS thinks employers will find these US workers.

The new rule, if adopted, is expected to become effective in the first half of 2019 and would impact all 100,000+ individuals currently holding an H-4 EAD. Researchers also estimate that the proposed rule will affect entire families, including the H-1B professionals themselves, because many will not be able to afford to live on one income if their dependent spouse is forced to abandon his or her career. This is especially true in areas such as Seattle and the Silicon Valley, which employ high numbers of H-1B workers and have a high cost of living. Entire families may leave the US, taking their job skills to other countries to compete with their former employers—whose only options to remain competitive may be to outsource the jobs or set up their own offshore facilities. Nearshoring to Canada has become increasingly popular, due to the relatively lower cost of doing business there and proximity to the US.

The direct cost of each failed expatriate assignment is estimated to range from $250,000 to $1 million, according to researchers. More important, the departure of these highly skilled workers represents a brain drain and a significant loss of talent for most companies.

Dentons helps employers develop strategies to recruit the world’s best and brightest to fill posts in the US and abroad. For more information, please contact the authors or your Dentons lawyer.

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Proposed end of H-4 employment authorization likely to affect over 100,000 families

Employment Authorization for H-4 Spouses

Effective May 26, 2015, the United States Citizenship and Immigration Services agency (USCIS) will begin to issue Employment Authorization Documents (EAD) to qualified H-4 visa status spouses of H-1B temporary worker visa holders.  This new permission to work in the US will not require a sponsoring US employer and will not be limited to any specific type of work.

To qualify, applicants will need to show that:

1.  They are maintaining H-4 visa status in the US;

2.  They are the spouse of someone maintaining H-1B visa status; and

3.  Their H-1B spouse either:

a.  is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or

b.  has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).

AC21’s Section 106(a) authorizes H-1B status beyond the normal 6 year limit to beneficiaries of an employment-based immigrant petition or an application for adjustment of status to permanent resident.  Section 106(b) provides those same benefits to individuals with an alien employment certification or employment-based immigrant petition pending before the Department of Labor or USCIS for more than 365 days.

To obtain employment authorization, the H-4 spouses will apply to the USCIS on Form I-765, Application for Employment Authorization, with supporting evidence and pay the government’s $380 fee.  The USCIS will begin accepting applications on May 26, 2015 and the press release instructs not to file before that date.  The H-4 spouse is authorized to work in the US only after receipt of the EAD.  USCIS processing times vary, but is typically about 90 days.

Although the USCIS estimates that this new rule will grant employment authorization to a large number of H-4 visa holders, many more H-4 spouses are not eligible due to the third requirement listed above. Although the press release touts how the change will support the US economy and bring US immigration policies more in line with the laws of other countries that compete to attract similar highly skilled workers, this rule is in fact more restrictive than many competing countries and not as generous as even the EAD rules for spouses on E-1, E-2 and L-2 visa status.

The full text of the USCIS press release can be found here.

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Employment Authorization for H-4 Spouses

DHS proposes new rules for professionals and their family

Last week the U.S. Department of Homeland Security (“DHS”) announced a proposed rule to attract high-skilled foreign workers by allowing spouses of certain H-1B holders to also be eligible to work in the US.  The rule, if enacted, will only help H-4 dependent spouses of H-1B workers who:

  •  Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  •  Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Other H-4 spouses and H-4 children would not be authorized to work.

In addition, the DHS proposes an unrelated change for certain professional visa holders that removes some obstacles to their remaining in the United States.   If passed, this new rule would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

For further information, see the DHS press release.

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DHS proposes new rules for professionals and their family