The US Department of Homeland Security is close to approving a policy that will remove the right of at least some H-1B visa holders’ spouses to work in the US, the Mercury News reported last week, based on a new court filing:
Those affected hold the H-4 visa, a work permit for spouses and under-21 children of H-1B workers. It remains unclear if all spouses of H-1B holders will be banned from working, as Homeland Security has only said “certain H-4 spouses” will be targeted by the new rule. Because not all H-4 holders are allowed to work, it appears that “certain H-4 spouses” may refer to all who are work-eligible.
Controversy over the H-4 has spun off from the furor over the H-1B, which is relied upon heavily by Silicon Valley technology companies but attacked by critics over reported abuses. Homeland Security, which had earlier said it would make the change in February, filed an update in a federal court case on Monday to inform the court that the new rule was in the final “clearance review” and that the department’s intention to impose the ban was unchanged.
H-4 visa holders were granted the right to work under a policy change made by the Obama administration in 2014. The Trump administration began considering a reversal of this policy in April 2017 and it became part of the regulatory changes the government developed in response to President Donald Trump’s “Buy American, Hire American” executive order issued that month, which called for a crackdown on guest worker programs like the H-1B visa and stricter enforcement against allegedly widespread fraud and abuse in these programs. The Department of Homeland Security formally proposed ending work authorization for H-4 visa holders last December.
The US Department of Homeland Security issued a proposed regulatory change on Thursday that would take away the right of spouses of H-1B guest workers who are seeking employment-based lawful permanent resident status to work legally while awaiting their green cards, the Wall Street Journal reports.
In 2015, the Obama administration introduced a program allowing these holders of H-4 visas (the visa granted to spouses of workers on H-1Bs so that they can live together in the United States) to obtain legal authorization to work. In a notice of intent to propose a rule next year, the department says it is proposing “to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.”
The notice cites the executive order President Donald Trump issued in April, titled “Buy American, Hire American,” which called on the departments of Labor, Justice, Homeland Security and State to crack down on the abuse of guest worker visa programs like the H-1B and H-4, and to amend procedures for allocating H-1B visas that award them based on merit rather than through a lottery.
Opponents of the Obama administration’s rule letting H-4 spouses work contend that it was an act of executive overreach (and are challenging it in court on that basis); the Trump administration “appears to be signaling that it intends to overturn it rather than defend it,” the Journal reports. Critics also say the previous administration did not do enough to ensure that H-4B holders did not displace American workers.
Although the latest round of H-1B visa applications opened on Monday without any rule changes from President Donald Trump or his administration, the Department of Justice is warning US employers that it will investigate and prosecute companies that hire foreign talent through the skilled worker visa program while overlooking qualified US citizens, the Associated Press reports:
“U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims,” Tom Wheeler, acting head of the Justice Department’s Civil Rights Division, said in a statement. … U.S. Citizenship and Immigration Services also announced that it would step up its reviews of employers that use H-1B visas, saying “too many American workers who are qualified, willing and deserving to work in these fields have been ignored or unfairly disadvantaged.”
According to Politico, US Citizenship and Immigration Services intends to give the most scrutiny to outsourcing firms that employ workers on H-1Bs to work elsewhere, which account for the lion’s share of visa applications each year and which rely heavily on the program. Trump is also reportedly looking at other ways to use his presidential powers to enforce H-1B regulations more stringently.