USCIS Possible Rollback of H-4 Work Permission Slated for June 2018

In 2015, the Obama Administration issued a rule allowing spouses of certain H-1B professional/specialized knowledge visa holders to obtain work permission. The rule was an acknowledgment that many of these H-4 visa holding spouses of H-1B workers want to work, and their inability to do so was not only an emotional and professional or economic hardship for them, but also a loss of talent for the U.S.   It was additionally a policy that made the U.S. less competitive in the global labor market and harmed U.S. businesses’ ability to retain valuable employees.

The Obama Administration’s 2015 rule stemmed in part from long wait lists for permanent residency visas for citizens of certain countries.   For example, H-1B visa holders from India who are applying for their residency through their employment must wait over a decade to get their “green cards.”   This represents a tremendous amount of human capital.  For example, according to USCIS data, as of January 2018 over 20,000 Indian citizens holding bachelors or advanced degrees and already working in professional or skilled positions here in the U.S. were still waiting for adjudication of their permanent residency applications filed between 2006 and 2009.   Under the old rule, their spouses had no ability to work during this time.   The 2015 rule change allowed H-4 spouses in these circumstances to obtain work permits during the  backlog delay.   Otherwise, the H-1B worker might seek employment and residency in another country that allows the spouse to work, depriving her/his U.S. employer of a valuable employee.

In 2016, the first full year after the rule change took effect, over 41,000 work permit applications were approved for H-4 spouses,  enabling them to be productive, pay taxes, help support their families, and participate more fully in their communities.

A 2015  lawsuit claimed that allowing H-4 visa holders to work would harm U.S. workers.  While the Federal Court denied the plaintiff’s injunction request and the rule took effect, the litigation over the rule continued.

In April 2017, the Trump Administration asked the Federal Court to pause the litigation while they considered whether they want to revise the Obama Administration’s rule.   On February 28, 2018, the Administration indicated to the Court that it intends to issue a new proposed rule by June 2018.

It is anticipated that the current Administration will roll back the H-4 employment authorization rules.  This would make it harder for U.S. employers to retain the H-1B workers in whom they’ve already invested and who are part of their teams, and will harm our economy.

Should the current Administration indeed propose rolling back the Obama era rule, comments opposing that rollback during any “notice and comment” period will be critical.