Trump administration files motion in court to revoke EAD for H4 visa holders

February 8, 2017

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NEW YORK: The Trump administration has filed a motion in an appellate court in the District of Columbia on February 1, requesting 60 days’ time, to prepare their argument to withdraw the Employment Authorization Card (EAD) for spouses on H-4 visa. This is the clearest indication yet that President Donald Trump has decided not to pursue the route of Executive Action, but legal recourse to clamp down on work permits granted to some foreigners.

BREAKING NEWS/UPDATE, on April 3, 2017: Trump administration asks for 180 days or less in case. Read updated news: https://www.newsindiatimes.com/h-4-visa-ead-might-be-safe-till-october-1-2017-as-trump-administration-asks-for-6-months-time-in-case/25796

The H-4 visa is given to a spouse and dependents, including children, of an individual on an H-1B visa. The H-4 visa holders were not allowed to work in the US, except to do voluntary work, till May, 2015, when the Obama administration relented and allowed some of the H-4 holders to apply for an EAD.

Even after the rule was passed in May, 2015 for H4 visa holders to get work authorization, only some of them benefited: only those whose spouse working on an H-1B visa had got an approved Form I-140. The rest had to wait their due turn to be allowed to work in the US.

For some H-4 visa holders, this meant years, if not a decade and more, of waiting to legally work in the US. With the risk of all of it dissipating if the breadwinner of the family, the one on H-1B visa, lost his or her job and status in the US. That would mean packing bags and leaving back for the home country, regardless of the number of years spent building a life in the US.

Ninety percent of H4 visa holders are women; and almost 80% of the 125,000 H4 visas issued in 2015 – the year they were allowed to apply for work authorization – were granted to Indian nationals. Many saw the visa as a ‘cursed’ visa, and holders felt being in a gilded cage, with the only consolation being living in a developed country like the US, and giving an opportunity for their children to reach greater heights.

Despite the anguish of the spouses on an H-4 visa, and their long campaign to be allowed to seek work and be economically empowered, contribute to society, there was resentment too by some displaced American workers. Many saw them as a threat to American workers, by taking jobs away.

A group of former IT workers at Southern California Edison (SCE) — who were laid off after training their replacements on an H-1B visa — filed a lawsuit in 2015 against granting EAD to H-4 visa holders, terming it as unlawful and unfair. They argued that there may have been as many as 180,000 H-4 visa holders eligible for an EAD.

After the Obama administration finalized the spouse rule, SCE workers believed that it was a double whammy for them. Not only had H-1B visa workers taken their jobs, but in the future their chances were stymied by EAD holding H-4 visa workers, with a majority of them going into the IT profession.

SCE “replaced 540 American computer programmers with low paid programmers from India imported on [the] H-1B guest workers’ visa,” argued the plaintiffs in court papers, reported Computerworld. Allowing the spouses (on H-4 visa with EAD) to work was “specifically designed to increase the supply of foreign labor in the United States.”

That lawsuit by the displaced SCE workers was last year dismissed in federal district court. However, the same workers appealed again, in appellate court in the District of Columbia. Now, the US government has decided to side with them, keeping up with the campaign promise of President Trump of looking after the interest of American workers first. On February 1, the Trump administration filed a motion requesting a 60-day abeyance to April 2.

John Miano, the attorney representing the SCE workers, said if the court grants the abeyance it will give the new administration time to decide how to argue the case. On the other hand, the prohibition on spouses working was a source of enormous frustration among H-1B workers and their families. More than 12,000 filed comments with the government, many in support of the rule change, reported Computerworld.

One wrote of a spouse with an engineering degree on a H-4 visa who had been in the U.S. for seven years but was unable to work. But another commenter, opposing the rule change, said that her daughter was unable to get nothing but temporary work for the past five years.

The White House too had given an indication of the Trump administration going hard after the H-4 visa.

White House press secretary Sean Spicer said at a press briefing last Monday: “With respect to H1-Bs and other visas, it’s part of a larger immigration reform effort that the president will continue to talk about through executive order and through working with Congress.”

He then added, for emphasis, to specifically add the work spouses in there: “whether it’s that or the spousal visa or other types of visas I think there’s an overall need to look at all these programs,” referring to “a lot of action on immigration.”

“You’ll see both through executive action and through comprehensive legislative measures a way to address immigration as a whole and the visa program,” he added.

Perhaps, the Trump administration needs to also look at the issue of the H-4 visa holders – many of them highly educated and qualified with burgeoning careers which they gave up when they came to this country – being denied work as an humanitarian issue.

Sabrina Balgamwalla, an assistant law professor at the University of North Dakota, wrote in a paper on spousal visa holders titled ‘Bride and Prejudice’: “When a wife enters the United States on a dependent spouse visa, she enters at the wish of her husband. Her dependent immigration status allows her husband to control her ability to live in the United States and all rights that stem from that status.”

Divya Ravindranath, a PhD student at Washington University in St Louis, writing of the plight of H4 spouses, in Economic & Political Weekly, noted: “Women interviewed for this study used phrases like “loss of identity,” “complete dependence,” “lack of confidence,” “forced unemployment,” “a nightmare” to describe their experiences and the implications of the H4 visa. For many women, the idea of being “unemployed” after securing high educational qualifications and prior work experience has been akin to living an anonymous life. In the absence of professional opportunities women complained about being wrapped in domestic responsibilities and moments of self-doubt, with no avenues for intellectual or social interactions…the H4 visa has taken away more than the “money-making capacity of H4 spouses —it also suppresses their ability to meaningfully function in society by restricting their ability to participate in daily transactions with third parties.”

It would be a sad day if EAD is taken away from an H-4 visa holder who had just started working and feeling truly independent in the ‘land of the free and the home of the brave.’

(This post was updated on April 3, 2017, with an update on case)