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.
A study earlier this year estimated that around 100,000 spouses of H-1B guest workers would lose their jobs as a result of the new policy, 93 percent of them women from India, the Mercury News added. Many of these women hold advanced degrees and had successful careers before emigrating to the US when their husbands were awarded H-1B visas to work in the tech sector. As a result, many of these couples may choose to return to their home countries. Indian H-1B workers who return to India after losing their visas or over uncertainty regarding their future status are reportedly helping to fuel that country’s ongoing startup boom.
For US tech companies, the prospect of thousands of H-1B visa holders leaving the US because their spouses can no longer work is a serious concern. The planned revocation of H-4 work authorizations was one of several issues brought up in a recent letter to Secretary of Homeland Security Kirstjen Nielsen, signed by the CEOs of dozens of major US companies. Corporate Counsel‘s Caroline Spiezio talks to immigration attorneys about what affected employers can do to prepare for the imminent policy change:
If H-1B workers already in the U.S. leave—because their spouse doesn’t want to live in a place where they can’t work, or because the family can’t live on one income—employee relocation costs could be high. Companies often spend thousands of dollars sponsoring H-1B workers, a process that takes a lot of both money and time. …
H-4 visa holders’ employers should keep in mind these employees may not have working rights in the U.S. should the policy change go through, said Caroline Tang, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart who works on immigration cases. Employers should know when workers’ current permits expire, and be aware of the potential that they’ll be un-renewable.
[Valentine Brown, a partner at Duane Morris,] said employers can also have an open door policy for workers concerned about the potential end to H-4 visa work permits, so employees can ask questions and feel secure that the company is staying on top of any immigration law changes.