Written by Tina Zedginidze Attorney at Karam Law
The H-1B visa is the workhorse of the U.S. employment-based immigration system, often serving as the immigrant’s initial step on the path to employment-based lawful permanent residency (i.e., a green card). Spouses of H-1B visa holders arrive in H-4 status. For years, activists criticized the United States for forgetting H-4 dependent spouses—revoking their autonomy by denying them a right to work in the United States.[i]
In 2015, the Obama Administration sought to correct this problem by implementing the H-4 Employment Authorization Document (“H-4 EAD”) rule. The H-4 EAD rule allows H-4 dependent spouses to obtain temporary work authorization if the principal H-1B visa holder’s employer has started the green-card process. Over 100,000 dependent spouses benefitted from the H-4 EAD within the first three years of the new rule.[ii] The H-4 EAD rule was a win for the rights of immigrant women.
In an effort to tighten immigration laws, the Trump Administration has threatened to eliminate the H-4 EAD rule. In Fall 2017, the Department of Homeland Security (“DHS”) published a Notice of Proposed Rulemaking to amend the previous 2015 rule.[iii] In light of the Buy American and Hire American Executive Order,[iv] DHS is reviewing the H-4 EAD rule. Repeal of the rule is intended to protect U.S. workers. In its proposal, DHS states that it anticipates two primary impacts of this proposed change: (1) the loss of funds from future H-4 EAD applications; and (2) the labor turnover costs that employers of H-4 workers could incur.[v] But DHS fails to take into account perhaps the most troubling consequence of repealing the H-4 EAD rule: the harm caused to the rights of minority women.
Approximately 75% of H-1B visas are held by men.[vi] Thus, women are the primary holders of H-4 dependent visas. In my own practice, I have witnessed this gender divide. Without the H-4 EAD rule, women are deprived of their autonomy for years. Consider the case of Indian nationals, who are the beneficiaries of 70% of all H-1B visas.[vii]
Immigration laws provide a limited number of employment-based immigration visas that can be issued to the nationals of individual countries in a year.[viii] The limited number of available visas has resulted in a significant backlog for certain countries. In particular, Indian nationals must wait approximately ten years after the employer has already initiated the green-card process to obtain lawful permanent residency.[ix] That is ten years in which the dependent spouse is not entitled to work—ten years without the opportunity to build a resume or pursue a career. Without the H-4 EAD rule, these women are often completely financially dependent on their husbands. Taking away the H-4 EAD benefit steals these women’s ability to earn a living independently, fulfill and progress their careers, and act as contributing members of their society.
The H-4 EAD is an important component of legitimizing the U.S. immigration system for women’s rights. But the H-4 EAD does not come at the cost of jobs for U.S. workers, as the Trump Administration suggests. Many H-4 dependent spouses fill highly skilled tech jobs in industries where there are insufficient U.S. workers. Other H-4 dependent spouses perform part-time work that is equally difficult to staff, in order to get out of the house and contribute to the community. Moreover, the work experience obtained by these H-4 dependent spouses allows them to more fully contribute to the U.S. economy once they obtain lawful permanent residency. As a result, the H-4 EAD rule is not simply a benefit to immigrant women; it is a benefit to the U.S. economy.
[i] See generally Magdalena Bragun, The Golden Cage: How Immigration Laws Turn Foreign Women Into Voluntary Housewives, 31 Seattle U. L. Rev. 937 (2008) (“Being unable to work makes American seem like a golden case: even though you live in a country of opportunities, most of them are beyond your reach. Like a bird in a cage, you are allowed to stay in the United States but cannot do much more than that.”).
[ii] EADs by Classification and Basis for Eligibility: Number of Approved Employment Authorization Documents October 1, 2012 – June 29, 2017, U.S. Citizenship and Immigration Services, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports and Studies/Immigration Forms Data/BAHA/eads-by-basis-for-eligibility.pdf.
[iii] Dep’t of Homeland Sec., Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization, RIN: 1615-AC15, 8 C.F.R. 214 (2017) https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=1615-AC15.
[iv] Exec. Order No. 13788, 82 C.F.R. 18837 (Apr. 18, 2017).
[v] Supra note iii.
[vi] See Ashley Parker, Gender Bias Seen in Visas for Skilled Workers, N.Y. Times (Mar. 18, 2013), http://www.nytimes.com/2013/03/19/us/politics/gender-bias-seen-in-visas-for-skilled-workers.html; see also Matt O’Brien, High-skilled Immigration Debate Grows Over Stark Gender Imbalance, Favoring Men for H-1B Visas, The Mercury News (Aug. 12, 2016), https://www.mercurynews.com/2013/03/18/high-skilled-immigration-debate-grows-over-stark-gender-imbalance-favoring-men-for-h-1b-visas/.
[vii] See Dep’t of Homeland Sec., Characteristics of H-1B Specialty Occupation Workers Fiscal Year 2016 Annual Report to Congress (May 5, 2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports and Studies/H-1B/h-1B-FY16.pdf (reporting that over 70% of all H-1B beneficiaries were Indian nationals).
[viii] One must draw a distinction between “non-immigrant visas,” such as the H-1B visa, and “immigrant visas.” Non-immigrant visas do not permit the individual to stay in the United States permanently. Immigrant visas do allow for lawful permanent residency.
[ix] See The Visa Bulletin, U.S. Dep’t of State, (last visited March 2, 2018), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-february-2018.html.