By Mahasweta Muthusubbarayan
On April 18th, 2017, in keeping with his campaign promises to put America first, US President Donald Trump issued an executive order directing his administration to frame policies in line with the principle of ‘Buy American and Hire American’. The objective of the ‘Hire American’ policy was to create higher wages and employment rates for Americans, as opposed to foreign immigrants. Sec. 5 of the executive order called for a review of the existing immigration laws and rules, and especially the H-1B visa program, to give effect to the ‘Hire American’ diktat. Almost eight months later, the directive appears to be taking effect, with the Department of Home land Security (DHS) contemplating changes to the Obama-administration created rule which allows the spouses of H-1B visa holders to work in the US.
The H-1B and H-4 visa program
The H-1B visa program offers visas to foreigners who are at least graduates and who hold highly-skilled jobs in the US, especially in the scientific, engineering, technology and financial sectors. In 2015, the Obama administration decided to allow spouses of H-1B visa holders—who held H-4 dependent visas—to seek full-time employment in the US. This was subject to the condition that the original H-1B visa holder had applied for and was waiting for a green card or had an already approved I-140 immigration petition to obtain permanent residency in the US. Family unification is an important principle governing US immigration policy and the Obama-administration introduced the rule to allow H-4 visa holders a sense of fulfilment and purpose for the duration of their stay with their spouses.
Challenge to the H-4 EAD rule
Earlier this year, the H-4 employment authorisation rule (H-4 EAD) was challenged in the US Court of Appeals in the DC circuit by Save Jobs USA, which contended that the rule was hurting the interests of US citizens. The Trump administration, including the Department of Home land Security, was called upon by the Court to respond. The case is still pending. Allegedly, the DHS contemplated implementing Trump’s Executive Order of April 2017 as a strategy to get out of the lawsuit. Whatever the reason, on December 14th, 2017, the DHS included an item titled ‘Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization‘ in its Fall 2017 Regulatory Agenda. No explanation was given for the move, except that the review was prompted by the President’s ‘Buy American and Hire American’ executive order. It was stated that the DHS has the authority to review and scrap the rule in accordance with the rules framed under the Immigration and Nationality Act, 1965.
Apparently, the DHS is also looking at revising the definition of occupations eligible for the H-1B program as part of implementing the same executive order. Any immigration laws or regulations made will have to be in compliance with the US Constitution, especially the Fourteenth Amendment, which provides for equal protection of laws to all persons. The process hasn’t been set in motion yet but should the H-4 EAD rule be scrapped, Indians will feel a pinch as Indians routinely make up for 60-80% of the H-1B visa holders in the US and often wish to take their spouses along with them.
Reactions to the news
CNN stated that while changing the rule will not prevent the spouses of H-1B holders from pursuing other avenues for work authorisation, it can deter a number of high-skilled immigrants from staying in the US if their spouses can’t easily find work.
Leon Fresco, an immigration attorney who worked for the Obama administration, stated, “This announcement places into jeopardy thousands of hardworking, contributing individuals who have started their own businesses—and often have US citizen children—who will needlessly be forced to revert to a status of inactivity.”
Featured Image Source: Pixabay
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