Spouses of H-1B workers can’t let their guard down just yet

Hanging on by a thread.
Hanging on by a thread.
Image: Reuters/Peter Casey-USA TODAY Sports
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A US court’s recent order leaving the jury out on H-4 visa holders’ work permit is at best a temporary relief and should not be seen as a permanent solution. For over 100,000 Indian women, the biggest recipients of the visa, the future is still in limbo.

On Nov. 9, the US court of appeals for the District of Columbia announced it will not abolish the Obama-era rule that allows work permits for holders of the H-4 visa, granted to the spouses and kids of H-1B visa holders. But this isn’t the final decision and the judgment has been sent back to a lower court for reassessment.

“The H-4 EAD (employment authorisation document) card is not 100% safe. For now, people can continue working on that card and apply for new cards or renewals, but the decision is still temporary until we have a final judgment from the US district court or the executive order to abolish it is withdrawn or replaced by another executive order,” said Poorvi Chothani, managing partner at immigration law firm LawQuest.

The much sought-after H-1B visa allows US companies to hire foreign workers in certain occupations for up to six years. For decades, dependents of H-1B holders, who go to the US on H-4, were not allowed to work in the country. The H-4 visa was seen as a “golden cage” that forced highly skilled dependents to be confined at home.

In 2015, president Obama’s government allowed H-4 holders who had applied and were waiting for green cards to get an EAD and work.

However, ever since Donald Trump took office in January 2017, his administration has been considering scrapping that rule.

“It always feels like we are walking on eggshells but we have to do our part to provide for the family in spite of the uncertainty,” said Swati Arun, who hesitantly moved to the US from Kolkata, India, with her techie husband in February 2016. “As immigrants, we have taught ourselves to be hopelessly optimistic.”

Whose jobs?

The case against EAD for H-4 visa holders has been built on the argument that the provision has increased competition in the job market. It was filed by Save Jobs USA, an organisation comprising IT workers who claim they lost their jobs to H-1B workers.

Experts believe there might be some truth to their claim.

“Having people already within the US joining the workforce is good for the economy but American workers are not likely to be happy,” said Chothani. “Unlike the H-1B, which is for particular high-skilled jobs, the H-4 EAD allows people to work in any job—even low-level entry jobs like a secretary in an office or a bank assistant. In that respect, yes, they are competing for local jobs.”

The current order by the appeals court gives Save Jobs USA a stand to fight the case.

However, in many cases, immigrant workers are filling a talent gap that will otherwise stay vacant. “A major part of jobs in the Silicon Valley and the medical and some other sectors are all primarily run by immigrants who are invited from other countries on visas for the special skills they possess,” said Arun.

There is a significant shortage of qualified workers in science, technology, engineering, and mathematics fields (STEM) in the US. Indians, who receive three-quarters of the H-1B visas every year, help employers fill this gap. The H-4 workers, too, are a meritorious addition to the talent pool for the most part. Nearly 60% of those living in the US as dependents of their spouses have professional or graduate degrees of their own; 49% have an individual income upwards of $75,000, a survey of over 2,400 people by advocacy group Save H4 EAD revealed.

Even industry bigwigs such as Apple, American Airlines, and Pepsi, among others, have argued that taking H-4 EAD beneficiaries out of the workforce would cause high-skilled talent to take their skills abroad.

The wait

At this point, a pending decision is not better than an unfavourable one.

“The possibility of the H-4 EAD rule being held as illegal or unconstitutional has opened up, which is certainly not a positive development for H-4 visa holders,” said Vivek Tandon, founder and CEO of immigration law firm EB5 BRICS.

While some are thankful they do not lose their H-4 EAD right away, “many less lucky ones have already lost their jobs because of the elongated uncertainty,” said Meghna Damani, who left her advertising job in Mumbai to marry and move to the US on an H-4, and made a movie about the plight of women like her who comprise 90% of the visa-holders.

This back-and-forth on the spousal visa is a “strategic ploy by the government to exacerbate the companies hiring H-1B and H-4 EAD holders into not hiring from this group,” Damani said. Due to the ambiguity, US companies are “forced to take decisions that are not in best interest economically and strategically and driven more by temporary announcements than by a certain stand.”

There is no way of knowing how a federal court will eventually rule, but experts hope the trial won’t end with a revocation.

“The only way a lawsuit against granting work authorisation makes sense is if the economy is a zero-sum game, and it’s not,” said Hassan Ahmad, a Virginia-based immigration lawyer. “Granting work authorisation empowers families, increases purchasing power, and ultimately creates jobs. America isn’t a pie to be divided: it’s a kitchen that can bake as many pies for which we have ingredients.”

Immigrants and their families are anxiously waiting for a Spring 2020 verdict, a timeline proposed by the department of homeland security (DHS) earlier.