H-4 visa EAD to be eliminated by DHS

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The Department of Homeland Security (DHS) is moving ahead with plans to revoke the work permit for H-4 visa holders, dependent spouses of H-1B visa holders.

DHS submitted on February 20, 2019 a proposed regulation, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” to the Office of Management and Budget (OMB) for review, according to a blog post by immigration attorney Emily Neumann, today.

“There is no information available yet regarding what is in the proposed regulation or how the government intends to handle existing H-4 EADs,” Neumann wrote.

The OMB review typically can take about a month to be completed, Neumann wrote. From that point, the following steps will need to occur: actual proposed regulation will be published in the Federal Register; there will be a comment period, anticipated to be 60 days; DHS will review the public comments and develop a final regulation; final regulation will be submitted to the Office of Management and Budget again for review; final regulation will be published in the Federal Register with a specific effective start date; and anticipate a lawsuit to be filed

“While this process is underway, you can continue to file new H-4 EAD applications and renew existing H-4 EADs,” she informed.

The website Amtech22.com predicted that the Trump administration will move fast on the EAD revocation rule.

“Finally, DHS has submitted the revoke rules to OMB and marked it as ‘Economically Significant‘ which means that OMB will wrap up comments period within 30 days,’ the website said.

If enacted, the new rule would bar all H-4 visa holders from being allowed to work legally. Even those who have been working with an existing work permit, an Employment Authorization Document (EAD), would be forced to immediately stop working, from the day the work permit is eliminated by the DHS.

An EAD for some H-4 visa holders was granted by the Obama administration after May 26, 2015 when USCIS passed the ‘Employment Authorization for Certain H-4 Dependent Spouses’ rule.

Those H-4 visa holders who had an approved I-140 – the immigration petition for foreign citizens to get a Green Card – were granted an EAD, which allowed them to take on any job they could find, with no bar on wage restrictions or eligibility restrictions.

An EAD is also granted to those H-1B visa holders whose status to work was extended beyond six years under AC21 Act, if their Green Card application is pending. That will continue regardless of this new move by the DHS.

Since its inception, the EAD for H-4 visa holders has been controversial, with anti-immigration groups filing lawsuits to end it.

Save Jobs USA, an organization comprised of IT workers who claim they lost their jobs to H-1B workers, filed its lawsuit against DHS on April 23, 2015 before the H-4 EAD rule was about to go live, according to immigration website redbus2us.com

The lawsuit was initially dismissed by a Federal district court in September 2016, but Save Jobs USA filed an appeal to the United States Court of Appeal for the DC Circuit. They claimed that the new rule has no protections for US workers and increases the pool of workers looking for jobs; and importantly, DHS never had the authority to grant EADs to H-4 visa holders.

The lawsuit steadily gained momentum under the Trump administration, which has made tough moves against H-1B visa holders as well.

Even as early as December 14, 2017, the Trump administration published an agenda item ‘Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization’ in the Fall 2017 regulatory agenda.

In August, 2018, the administration, in a court filing, said the proposed rule to revoke work permits of H-4 visa holders is in ‘final clearance and review’ process.

According to reports, if the H-4 visa EAD is eliminated, Indian nationals would be the worst affected, especially women. Women account for 9 out of 10 of the over 100,000 H-4 visas issued annually.

The situation is even more depressing and future uncertain for hundreds of thousands of dependents on H-4 visas, especially Indians and Chinese, who are in limbo because of the jam in the pipeline for a Green Card, which is estimated to take anywhere up to a 100 years for some aspirants.

The situation is so bad that the backlog has now begun to bite at even the children of H-1B visa holders, who too are on an H-4 visa, as a dependent. These children and teenagers face the possibility of having to leave the country or forced to go on a different legal status, like an F-1 student visa, or an H-1B visa themselves, if they don’t get permanent residency or Green Card by the time they turn 21.

The gross injustice and gender inequality was brought into stark focus by US Congresswoman from California Anna Eshoo, who last year remarked on the possible elimination of the H4 EAD, to SFGate.com, “This barring of individuals from working, in this case spouses, it’s unfair. What possible rationale is there for allowing one to work and one (to) not?”

SaveH4EAD, a Facebook group advocating for H4 visa holders – who have more than 6,000 members in 22 states, was reported by PBS last year, as revealing that according to a survey they conducted in California, nearly 60 percent of 2,411 responders had professional or graduate degrees; 43 percent bought homes after receiving their EAD and 49 percent have an individual income of more than $75,000.

PBS reported that in a bipartisan effort in May, 2018, Rep. Pramila Jayapal (D-WA) and Rep. Mia Love (R-UT) penned a letter signed by 130 members of Congress to Homeland Security Secretary Kirstjen Nielsen, arguing that revoking those work permits would hurt the US economy.

The Information Technology Industry Council, a tech lobby, also sent a letter in support of the work authorization to the US Citizenship and Immigration Services in January.

PBS reported on the predicament of Molika Gupta, a 32-year-old patent licensing professional in Detroit, who moved to the US after tying the knot in 2013. She pursued a master’s degree but her H-1B visa, filed by an auto company in Detroit, was not picked up in the lottery, leaving her without a way to work.

“It was absolutely horrendous,” she said. She waited for two years before receiving her EAD. “It was the most dark phase of my personal and professional life … I was not prepared for [going from] attending meetings on Monday morning to making chapattis to watching Netflix on the same Monday mornings,” said Gupta, who also holds a master’s degree in biotechnology. “It was mixed with emotions of depression, loneliness and questions on self-esteem and self-worth, and not being able to accept the fact that this happened to me.”

Now, if DHS has its way, tens of thousands of women on an H-4 EAD, would face the same situation: going back to square one.

CNBCtv18.com reported the story of Meghna Damani, of New Jersey, last year, who had worked in advertising, film-making and modelling in Mumbai before coming to the US in 2002. Damani got an EAD in 2007, Green Card in 2010 and US citizenship in 2018.

Damani made a short autobiographical documentary ‘Hearts Suspended’, to create awareness of the plight of H-4 dependents who are not allowed to work, in Congress, advocacy groups, and media. This is how she summed up revocation of the EAD for H-4 visa holders:

“The families of H-1 and H-4 holders will be hit financially as many have purchased homes trying to build a life for themselves. The impact on their domestic life and children is often overlooked with the focus on their economic and financial situation, but it is a very important aspect as being isolated and unemployed has life-long adverse effects on mental health, causing disharmony that impacts not only the family here but also the family back in India,” said Damani.

The report added Damani is now working on a film sequel with the working title of ‘America’s Dependent Housewives’ on the lives of H4 visa holders with EADs whose destiny remains in suspense.

Consternation, fear and frustration were high as Neumann broke the news of the EAD elimination, on her blog site, immigrationgirl.com. Comments continued to pour in. Here are some (sic):

Hi Emily, if my wife loses her job due to losing her H4-EAD we may lose our home loan approval. Is it possible to sue the government on an individual basis to recover such economic losses?

“Well If this Happens, I dont Know exact numbers but My Guess is 1. At least 30K spouses will lost their Jobs and at the same time at least 15k houses will be listed for SALE. 2. 30K spouses will stop sending their kids to DAY care centers, expensive Kids activities, stop choosing manual labor services , will STOP going out fro restaurants, travel trips etc.. 3. At least 20K vehicles will be listed for SALE. 4. All most all above couple are fed up with their lives, so at least 10k will move back to their Home. Note: This is not the END OF LIFE, Every one can live happily where ever they are.

“There are hundreds of families who purchased homes and kids. Housing loans are approved based on two incomes. Government now punishing these families by revoking H4 eads.”

“This potentially means losing our home and moving out. I don’t understand if we can even afford to rent with the 3 times salary considering how much the rent is in a lot of places on a single income. Basically punishing immigrants just because Disney fucked up. America: Corporates and politicians making immigrants the enemies while they keep taking advantage of the basic citizenry by avoiding billions of $ of taxes every year.”

“More bad news. so sad.”

“2 minutes silence for some more American dreams being crushed”

Cyrus Mehta, a New York-based immigration lawyer, had tweeted earlier on the tough stance by the Trump administration on legal, skilled immigrants, and had this piece of advice to give: “This is cruel and disgraceful on the part of the Trump administration, but if there is an arbitrary denial of an H-1B extension, do not hesitate to sue the Administration in Federal Court. If 1000s sue then the Administration will be forced to back down.”

The news of the H-4 revocation comes at a time when the number of Americans filing applications for unemployment benefits fell last week, but the four-week moving average rose to a more than one-year high, suggesting the labor market was slowing down, reported Reuters.

Initial claims for state unemployment benefits dropped 23,000 to a seasonally adjusted 216,000 for the week ended February 16, the Labor Department said on Thursday.

Payrolls jumped by 304,000 jobs in January, the most in 11 months, after increasing by 222,000 in December.

The claims report showed the number of people receiving benefits after an initial week of aid dropped 55,000 to 1.73 million for the week ended Feb. 9. The four-week moving average of these so-called continuing claims rose 2,750 to 1.75 million, the report said.