The Trump administration announced last fall its intention to eliminate work permits for some spouses of H-1B visa holders. Since then, these spouses, who hold H-4 visas, and their families have lived under the threat that their careers and second income will end.
Since 2015, the spouses of H-1B specialty occupation visa holders who are waiting for their green cards to apply for work permits, thanks to a regulation put in place by the Obama administration. The vast majority of spouses granted work permits are women.
The Alcorn Immigration Law team continues to closely monitor the developments regarding work permits for H-4 visa holders. For now, here are three things H-4 visa holders—and the companies that employ them—should know:
1. Explore Options Now
While U.S. Citizenship and Immigration Services (USCIS) continues to issue work permits—or employment authorization documents—to eligible H-4 visa holders, we continue to recommend that H-4 visa holders and their employers explore alternatives now. That’s particularly crucial given the long waits for green cards. A recent Cato Institute study estimates individuals from India face a whopping 151-year wait to transition from an EB-2 visa to a green card. The study estimates EB-3 visa holders from India fare better, but still face a 17-year wait.
In February, I provided a full list of options for H-4 visa holders and employers that the Alcorn Immigration Law team typically explores.
2. Safe—for Now
Earlier this year, the Department of Homeland Security (DHS) notified a federal court of appeals that it planned to publish in the Federal Register a proposed rule to rescind the work permit regulation in June 2018. That was after DHS missed its original February 2018 target. June has come and gone without a proposed rule or any update from DHS.
The court notice stems from a lawsuit filed by Save Jobs USA in 2015. Save Jobs USA is a group whose members are former tech workers displaced by H-1B professionals. The suit remains pending.
The first step to rescinding the H-4 work permit regulation begins when DHS submits a draft of the proposal to the Office of Management and Budget (OMB) for review. After the OMB review and any required changes are made, DHS will publish a formal notice of the proposal in the Federal Register.
Once that’s done, the public will have at least 30 days to comment. Following that public comment period, DHS could make changes to the rule based on public input. Afterward, DHS would publish the final rule in the Federal Register and the effective date.
We urge individuals and companies to comment once the DHS publishes its proposal in the Federal Register.
3. Ending Policy Costly to Companies
Revoking work permits for H-4 visa holders is not just a blow to the visa holders and their families, but the companies they work for. The DHS proposal will likely increase the risk that H-1B visa holders will leave their U.S. work assignment early, according to a new study.
The study’s researchers Christopher J. L. Cunningham of the University of Tennessee at Chattanooga and Pooja B. Vijayakumar of the Kemmy Business School at the University of Limerick say that’s costly to employers. They estimate the cost to companies of each failed expatriate assignment from $250,000 to $1 million per person.
We Can Help
The Alcorn Immigration Law team continues to closely monitor this and all other immigration policy developments. Contact us for a consultation to determine the best path forward for you, your company, your employees, or your family.