Work permits for H4 visa holders uncertain under Trump

SAN JOSE, California — The future of a 2015 Department of Homeland Security initiative that allows certain H-4 visa holders (spouses of H1-B skilled workers) to work is uncertain under the incoming Trump administration, according to Indian American immigration rights activists.

President Barack Obama had made several important moves for immigration – including the Deferred Action for Childhood Arrivals program and an initiative to aid the undocumented parents of U.S. citizens – through executive orders. President-elect Donald Trump has vowed to repeal Obama’s executive orders during his first 100 days in office.

Work authorization for H-4 visa holders is a DHS initiative, and not an Obama executive order.

H-4 visas are allotted to the spouses of H-1B highly skilled temporary workers. Indian spouses make up the overwhelming majority of H-4 visa holders. An estimated 180,000 people were eligible to apply for work authorization in the first year the initiative was implemented, and 55,000 are eligible each subsequent year.

“Immigration reform is one of the biggest levers the U.S. has to raise the economy,” said Jason Furman, chairman of the White House Council of Economic Advisers, in a conference call with reporters last year, after DHS announced the new initiative.

Also highly skilled

H-4 visa holders will add additional talented workers to the labor force and encourage highly skilled H-1B workers to remain in the U.S. and apply for legal permanent residency, he said.

Many H-4 visa holders are as highly skilled as their spouses, but until May of last year, they were not allowed to work. Work authorization will be given to H-4 visa holders whose H-1B spouses have applied for legal permanent residency.

Labor activists challenged the new DHS regulation in a lawsuit last year – led by Save Jobs USA – saying they were unfairly being forced to compete with 180,000 more applicants in a crowded employment market.

“Congress has adopted the longstanding policy of not allowing H-4 aliens to work in the United States. Through the H-4 Rule, DHS has reversed this longstanding congressional policy,” stated the plaintiffs.

But Washington, D.C., U.S. District Judge Tanya S. Chutkan ruled Sept. 27 that giving work authorization to certain H-4 visa holders did not unfairly impact the American work force.

Chicago, Ill., attorney Tejas Shah, who leads Franczek Radelet’s immigration practice and co-chairs the South Asian Bar Association’s immigration panel, told India-West it is unlikely that President-elect Donald Trump could immediately revoke work authorization for H-4 visa holders. DHS implemented the initiative last year after a lengthy “notice and comment” period.

Notice and comment period

If a new DHS administration – potentially helmed by retired Marine Corps General John Kelly, Trump’s nominee for the role – wanted to undo the H-4 work authorization initiative, it would have to undergo the same “notice and comment” procedure, explained the Indian American attorney.

“This is unlikely to be done in the first 100 days, and I’m hoping that this will not be one of the new administration’s first priorities,” Shah said.

Kelly is largely viewed as a “middle ground” to Trump’s hard-line positions on immigration, which include deporting 11 million undocumented immigrants, creating a registry for all Muslim immigrants, and building a wall on the U.S.-Mexico border. The nominee has said little about his immigration policy. Shah predicted he would largely focus on stabilizing Central America.

Jeff Sessions, Trump’s nominee to head the Justice Department, has spoken out against both legal and illegal immigration, and has talked about cancelling the Optional Practical Training program, in which foreign students can stay on for an additional 18 months in the U.S., after finishing graduate studies.

Uptick in employer concerns

Shah said he has seen an uptick in employers’ concerns as to whether they should hire H-1B and H-4 visa holders, given the uncertainty surrounding both those programs as the new administration steps into the White House. “I would caution employers from jumping to conclusions,” he said.

For H-4 visa holders who are currently employed, Shah said: “Don’t worry about it and carry on with your job. We all just need to hold our breath and see what happens.”

Suman Raghunathan, executive director of South Asian Americans Leading Together – which led the effort to permit work authorization for H-4 visa holders — told India-West that the future of the initiative is unclear. “We don’t actually know yet what the status will be. We’re just waiting to hear,” she said.

Raghunathan said she hopes the new DHS administration will continue the initiative, and expand it to allow a greater proportion of H-4 visa holders to work.