Biden dumps Trump plan to end right to employment for H-1B spouses

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Wednesday Jan. 27, 2021 will definitely be hailed with a victory chorus by thousands of voices within the Indian immigrant community in the United States.

Most women, spouses of H-1B visa holders are breathing a sigh of relief that President Joe Biden just rescinded the rules brought in by the Trump administration that threatened to end their right to work while waiting for their (mostly) husbands to get their green card.

Doug Rand, one of the architects of the H-4 Employment Authorization Document  (H-4EAD) in the Obama administration, is among many who is delighted that it is back.

In 2015, he was a key player in enabling some 100,000 H-4 visa holders, a majority of them Indian women spouses, to work. That was in the waning days of the Obama administration.

Within two years, when many of these women had secured employment and others were getting calls for interviews, the Trump administration began efforts to rescind H-4EAD.

President Biden put an end to that with just one command – “withdrawn” – sending the H-4EAD groups into a heady victory.

Rand in his tweet, notes the following sequence of events —

“2015: ~100k people on H-4 visas became eligible for work permits after years of lost dignity & productivity

2017: Trump threatened to take it all away

2021: It’s over—& it was all bluster. Four years of completely needless anxiety. Kudos to

@SaveH4EADs & others for organizing.”

The group Rand refers to tweeted its success. “After years of advocacy, meeting congress members, DHS/OMB & collecting irrefutable data on value add of H4EAD not only to economy but also to provide life of dignity to thousands of immigrants, we are pleased to announce that new admin has withdrawn regulation to help #SaveH4EAD”

For decades, spouses of H-1B workers who have spent years in the United States have encountered a steep barrier to economic opportunities: the inability to work until a green card is available, the group notes on its website.

Blaming it on congressional inactivity on immigration, these spouses, mostly Indian and Chinese women, have been forced to put their lives on hold.

That changed in May 2015 with the introduction of the H-4 EAD program, an administrative policy, which offers eligible spouses of H-1B holders work authorization while they await the ability to adjust status to permanent residents.

According to data presented by #dSaveH4EAD, in its first four years, fewer than 170,000 applications for employment authorization were approved in this classification.

“Ultimately, the H-4 EAD represents an interim convenience for certain H-4 dependent spouses who would otherwise not be allowed to work for up to many years, decades, or even as long as a century until an immigrant visa became available, at which point they would be able to apply for employment authorization based on their application for adjustment of status.

Because of the massive green card backlog, these spouses would have had to wait anywhere from a few years to a century, according to experts who have been looking at the problem of legal immigration specifically of high-skilled works, a vast majority of whom are from India.

Harking back to the 1960s when the door to immigration was opened wider than before, Prakash Khatri, former Ombudsman at the USCIS, noted the Immigration Act of 1965 was meant to equalize and not discriminate against any nationality, “especially one that has contributed so much to the technological development of this country.”

“The hope is the Biden administration will find a way to undo this unintentional discrimination of Indian nationals,” said Khatri, currently an immigration attorney in greater Washington, D.C.

In dealing with the backlog Khatri said, “Biden could say – we are basically undoing what has been done to a highly qualified, highly skilled people.” As for the H-4EAD, Khatri pointed out that the government actually benefits from the higher taxes these H-1B-H-4EAD couples end up paying in taxes.

During the Trump administration, these high-skilled visas and the attendant spousal H-4EAD, were seen as taking away the jobs of American workers, despite protestations from the tech industry that this was not the case.
Even though they make up a fraction of civilian labor force, the Department of Homeland Security was on the brink of eliminating this program, “first under the guise of President Trump’s “Buy American, Hire American” Executive Order, and more recently as a result of the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

President Biden’s immigration plan that came into play on assuming office Jan. 20, includes provisions that would make H-4EAD a part of the H-1B visa holders work authorization, thus giving it a more permanent status. That will take its time to wind through Congress.

But the immediate step taken Jan. 27, sends a hopeful signal to the Indian immigrant community that Biden has their back.

According to Bloomberglaw, though the details of the immigration law Biden sent to Congress, are yet to be divulged, the bill’s lead sponsor, New Jersey Sen. Bob Menendez is the lead sponsor, and he has placed key provisions for workplace immigration programs.

“In addition to the H-4 EAD provision, the plan would further expand employers’ access to foreign workers by clearing out visa backlogs, ending per-country caps, recapturing employment-based green cards, and enabling foreign graduates in the science, technology, engineering, and math sectors to stay and work in the U.S.,” Menendez reportedly said in a Jan. 21, 2021 briefing, according to Bloomberglaw.com.

But litigation by anti-immigration groups are making their way through courts even as the rules put out by the Trump administration have been frozen by Biden.

Those applying for H-4EADs still face inordinate delays due to the US Citizenship and Immigration Service requirements of biometric data during the Covid-19 pandemic.

“#H4EADdelays are causing devastation in lives of skilled legal immigrants, mostly women of color. The impact on mental health is severe,” noted SaveH4EAD in a tweet Jan. 26. “We request .@POTUS @VP to take swift action on #Jan29ImmigrationDay to #ResolveH4EADdelays & #SaveH4EAD,” the organization appealed to both Biden and Vice President Kamala Harris, reminding her that as a U.S. Senator, Harris had “always championed to #SaveH4EAD”.

The group is pressing lawmakers to get being their primary demands which include removing biometric requirements for H4 extensions; deferring to previsou practice of processing H-1B and H4d extensions together; alldowing automatic 180 day extensions while renewal applications are pending; and withdrawing proposed regulation to revoke H-4EAD.

SaveH4EAD also released the following statement –

Statement released by the organization that led struggle to retain employment authorization for h-4 visa holders. Photo: @SaveH4EAD