There are rumors about the H-4 EAD for spouses of H-1B visa holders and they are not entirely accurate. There is a freeze on judgments for the visas while there is a lawsuit in court over the legality of the stance. The government is fighting back against the lawsuit, and H-4 EAD for spouses cannot be approved while the court rules on it. This article explains why the myth is concerning for those coming to America, and it may frighten anyone who is already in the country.
#1: The Freeze Stops Everything
The freeze stops nearly everything in the system related to the processing of H-4 EAD visas, and anyone who is looking for an H-4 EAD visa cannot begin the process. Anyone who is already in the system will find they must wait for the judgment to come down on the case. They will wait while the visa is suspended, and they may call the government for help staying in the process while they are waiting. There are many people who may believe they cannot apply again and there are more who are afraid their applications will be kicked out of the system. The simple fact is that the government is only on hold while the court case is pending.Read More
A few weeks ago we blogged about a new regulation allowing H-4 visa holders(dependents of H-1B visa holders) to work in the United States. However, a case has just been filed in Washington D.C. federal court challenging this regulation. The lawsuit, Save Jobs USA v. U.S. Department of Homeland Security, was filed lastThursday by Save Jobs USA, a group representing former California computer workers, claiming that the regulation violates the Immigration and Nationality Act and asking the court to vacate the H-4 rule allowing spouses to work in the UnitedStates.
Save Jobs USA backs up its claims by stating there is no statute that authorizes H-4visa holders to work in the United States and that in promulgating this rule, theDepartment of Homeland Security has exceeded its authority. The effect of this, asmuch of the complaint is focused on, is the increase in foreign competition, which inturn burdens U.S. citizens by increase the difficulty of finding a job. Specifically itstates the new rule will increase the foreign workforce by 179,000 in the first yearand 55,000 following years. Save Jobs USA goes on to list three instances of SaveJobs USA members who have been replaced by H-1B visa holders.
Save Jobs USA claims the Immigration Nationality Act has provisions that aredesigned to protect American workers. For instance, the Labor Conditions Application (LCA) limits the number of visas to be issued to foreign workers.However, allowing H-4 holders to obtain work, works against the protection thatlimits the amount of foreign workers
The complaint also cites the Department of Homeland findings that the new H-4regulation will make the H-1B visa more attractive and cause employers to retain the H-1B workers that are already working for United States companies. Save JobsUSA warns that an increase in H-1B workers staying in the United States in conjunction with an influx of new H-1B workers coming to the United States each year, will only work against the United States citizenâ€™s ability to find viable employment.
Another issue raised by Save Jobs USA is a website that contains postings for foreignworkers in the United States on H-4 visas. The website already has 15 job postinglisted, all for computer jobs. Therefore even though the new regulation allowing H-4 workers to work has yet not gone into effect, there is already increasedcompetition for jobs when these jobs could potentially go to U.S. citizens.
Save Jobs USA is asking the court to vacate the H-4 rule and prevent H-4 visa holdersfrom working in the United States. If they win this could upset the projected179,000 foreign workers who would apply for work under this new provision in thenext year. The United States government will be defending this case and will likelyargue it does have the power to pass this regulation.
The arguments raised by Save Jobs USA are very narrow in scope and does not consider the broader economic benefits of the regulation. Many families will benefit from the regulation because it will allow both parents to work outside of the home and bring in additional income. Additionally allowing spouses of H-1B holders to gain work authorization will increase the number of highly-skilled workers in the workplace. This will benefit many U.S. companies that require highly-skilled workers, particularly in the technology sector. Save Jobs USAâ€™s arguments are narrow and are only focused on the increased competition and fails to address any of the many benefits this regulation provides.
Contact the Law Office of Sweta Khandelwal for updates on this case or to discusswork authorization for H-4 visa holders or any other immigration questions.Attorney Khandelwal is an immigration attorney located in the Silicon Valley.
Save Jobs USA v. U.S. Depâ€™t of Homeland Security, Filed April 23, 2015
Currently dependent spouses on H-4 visas cannot lawfully seek employment in the United States, but that will be changing soon! The USCIS has officially announced that certain H-4 dependent spouses of H-1B visa holders may seek employment in the United States starting May 26, 2015.
Those eligible are H-4 dependent spouses of H-1B holders who are the principal beneficiary on an approved I-140 or the H-4 dependent spouses who have been granted H-1B status under section 106(a) and (b) of the American Competiveness in the Twenty-fist Century Act of 2000 (amended by the 21st Century Department of Justice Appropriations Authorizations Act).
The Department of Homeland Security predicts as many as 179,600 H-4 dependent spouses may be eligible for employment authorization during the first year of the implementation. Each year after, the number of H-4 applicants expected to apply for employment authorization drops to 55,000.
The Department of Homeland Security reported on public comments it received about the new H-4 EAD status. Of the comments received about 85% of the comments were in support of the extension of EAD to H-4 dependent spouses. Additionally, more than 60 commentators stated that because of the change in H-4 employment authorization they canceled plans to leave the United States and will now stay and continue to pursue Legal Permanent Residence.
H-1B holders cancelling plans to leave the United States because dependent spouses can seek work illustrates the significance of this change. An additional income and an option for both spouses to pursue a career track can have a big impact on families. With significant public support for the addition of H-4 EADâ€™s it is evident that many families are eager for this change and it seems likely that many families will utilize the ability to bring in an additional source of income.
India, a country that utilizes a significant portion of H-1B visas will significantly benefit from the addition of H-4 EADs. In 2012, of the 262,569 H-1B beneficiaries, 168,367 of the beneficiaries were from India. Considering that many H-1B holders move to the United States with their families, Indian families will greatly feel the impact of this announced change, while benefiting the United States economy as well. Many highly skilled employees come to the United States from India each year and allowing dependent spouses to work may bring even more skilled workers into the United States and retain the skilled workers that are already in the United States.
After May 26th, dependent spouses can apply for employment authorization and, if approved, will receive an EAD card. The EAD card allows the spouses to work legally in the United States. Additional paper work and filing fees must be sent to the USCIS to apply for employment authorization.
To apply for employment authorization on an approved H-4 or to discuss any other immigration needs contact the Law Office of Sweta Khandelwal. Attorney Sweta Khandelwal is an experienced immigration attorney in the Silicon Valley area.
Characteristics of H1B Specialty Occupation Workers, Fiscal Year 2012 Annual Report to Congress, October 1, 2011- September 30, 2012, U.S. Department of Homeland Security
Employment Authorization for Certain H-4 Dependent Spouses, February 15, 2015, Department of Homeland Security
DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence, January 24, 2015, USCIS