Under the current system, the spouse of an H-1B visa holder who has applied for lawful permanent residence in the U.S (also known as a “green card”) as the principal beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker is entitled to apply for H-4 employment authorization, while the outcome of the green card application is pending.
The rule was introduced under the Obama Administration on May 26, 2015, with the stated aim of retaining skilled talent in the U.S. The number of green cards issued annually is subject to a fixed cap per country, which means, in some cases, it may take over a decade for a foreign national to receive a decision on an application for lawful permanent residence. The U.S Government introduced the rule, to provide an incentive for the talented spouses of H-1B visa holders (who generally hold H-4 derivative visas) to remain in the U.S and contribute to the U.S economy, pending the result of the H-1B visa holder’s green card application, based on employment preference.
Save Jobs USA v Department of Homeland Security
However, all of this could be about to change. On April 23, 2015, Save Jobs USA, an organization composed of technology industry employees who claim to have lost their jobs to H-1B visa holders, filed a complaint in the District of Colombia Federal Court for declaratory and injunctive relief to stay the implementation of the rule in question. They allege that the Department for Homeland Security lacked the statutory authority to allow H-4 visa holders to apply for employment authorization and therefore the rule is invalid. Furthermore, they allege that, by allowing the spouses of H-1B visa holders to obtain employment authorization, the Department of Homeland Security has increased the competition for employment faced by U.S workers. In any event, they contend the rule is arbitrary and capricious.
On May 24, 2015, the District Court denied the Plaintiff’s Preliminary Motion for Injunction, on the basis that Save Jobs USA had failed to demonstrate that they would be subject to “irreparable harm” absent preliminary relief. Save Jobs USA subsequently filed a notice to appeal to the U.S Court of Appeals on September 28, 2016.
On April 3 2017, the Department of Homeland Security filed a Motion to Hold Proceedings in Abeyance for Six Months, on the basis that they had “concluded that it is appropriate to actively reconsider whether to revise the H-4 Rule through notice-and-comment rulemaking”. The motion was opposed by Save Jobs USA and, at the time of writing, no decision has been made by the U.S Court of Appeals.
The move, which was wholly unanticipated, appears to suggest that the Department of Homeland Security is at least contemplating the voluntary abolition of the rule.
The Political Response to H-4 Employment Authorization
In any event, it seems likely that the right of H-1B spouses to apply for employment authorization pending the outcome of their spouses’ green card applications based on employment preference will be sharply curtailed or abolished under the current administration. President Trump has been vocal in his criticism of the H-1B visa and, indeed, a draft Executive Order on immigration circulated in January 2017 appeared to threaten the future of the H-1B visa scheme, as we know it. Moreover, as a Senator, the current Attorney General strenuously opposed President Obama’s decision to allow H-4 visa holders to apply for work authorization in these circumstances, describing it as a legal reform which “hurts American workers”. The future of the right of H-4 visa holders to apply for employment authorization pending the outcome of their spouse’s application for a green card based on employment preference appears to be bleak.
Our View
In our view, it would be grossly unjust to remove the right of H-4 visa holders to apply for employment authorization pending the outcome of their spouses’ green card applications, on the basis of employment preference. Indeed, it is likely such a move will cause financial hardship to H-1B visa holders and their families, whose finances may be placed under a strain by the spouse’s inability to work during the lengthy green card application processing time. It may take up to 10 years for the USCIS to process an application for a green card, depending on the nationality of the individual in question. Few people have the financial capacity to cease employment for such a lengthy period of time.
Similarly, it may act as a disincentive for H-1B visa holders to remain in the U.S. While a H-1B visa holder may wish to seek lawful permanent residence in the U.S (thereby permanently filling a skill shortage in the U.S economy), the reality is, they may consider it unattractive to do so, given the lengthy delay in processing green card applications and the inability of their spouse to obtain employment authorization in the interim. If it becomes less attractive for foreign nationals to live and work in the U.S, U.S firms will find it more difficult to fill skill shortages, which may result in a less competitive market and, overall, a less competitive economy.
At Davies Legal, we are able to assist with all aspects of H-1B visa applications, including applications for H-4 derivative visas and H-4 employment authorization documents. We undertake all work on a fixed fee basis and are committed to providing the highest standards of client care. Call now for advice on your case and for a complimentary quotation.
