H-1B: Workers’ spouses could lose job permits

WASHINGTON — After nearly two years of delays, the Trump administration is moving ahead with its plan to stop granting work permits to the spouses of many high-skilled visa holders, an effort that could jeopardize tens of thousands of immigrant families in California alone.

Rolling back the permits could have sweeping consequences for the Bay Area, where tech companies heavily rely on high-skilled immigrants. Many of those workers come to the U.S. with spouses and children, and the loss of the spousal work permits could imperil families’ ability to stay in the country or deter workers from accepting jobs here to begin with.

The step forward for the regulation comes as a federal appeals court ran out of patience with the administration’s delays in issuing it.

The proposed regulation was officially sent to the White House for review on Wednesday, a government database shows. That procedural step means that the Department of Homeland Security has completed its work on the policy. The White House will now put the regulation through review with other agencies, a process that can take anywhere from days to months, depending on the regulation’s complexity.

At issue are work permits for nearly 100,000 immigrants who are here with spouses, working on high-tech visas and seeking green cards. (Spouses and children of H-1B visa holders have H-4 visas granting residence.) The largest share of those, nearly 30,000 of them, live in California, according to a

Congressional Research Service report.

In 2015, the Obama administration created the H-4 employment authorization document, known as H-4 EAD, to allow those spouses to work until the family can get green cards. Getting those permanent residency permits can often take many years, especially for immigrants of countries like India and China that send a lot of high-skilled talent to the U.S. In the meantime, their spouses are unable to work legally in the U.S. unless they have an employer who can separately sponsor them for a visa.

Since it went into effect, more than 90,000 immigrants have been approved for work permits under the program. President Trump pledged early on to rescind the H-4 permit program, but the administration has delayed. As it continued to promise the regulation would come, a lawsuit challenging the program has been on hold in the courts.

That changed in December, when the D.C. Circuit Court of Appeals stopped granting the Department of Homeland Security extensions and ordered that the case proceed. A group of technology workers called Save Jobs USA who argue the program jeopardizes American jobs sued the Obama administration and, after losing in D.C. federal court, appealed the case. The Trump administration after taking power had it postponed until December.

The reasons for the delay, and sudden step forward, are not entirely clear. Government lawyers had assured the court the rule was being written and reviewed. In September, the lawyers had predicted a rule would be out in three months. The first briefs in the case are due in March.

Experts suspect that with the government finishing a separate rule blocking immigrants who might use public benefits, and with the lawsuit moving forward, the work was expedited. Once the rule is published, the government could argue the court should indefinitely postpone the lawsuit, as the underlying regulation is being rewritten. That would avoid the chance that the appellate court decides the program is legal, setting a precedent contrary to the objectives of the Trump administration.

“The agency doesn’t want to risk having a judicial ruling that would go against it,” said Natalie Tynan, an attorney with Hunton Andrews Kurth who worked in the Department of Homeland Security for over 11 years. “In general from an agency’s perspective, the agency prefers to issue its regulations rather than have the courts opine on what the regulations should say. So any opportunity to moot out litigation is a positive one for the agency.”

Fifteen members of California’s congressional delegation signed a letter urging the Trump administration to preserve the permit program last year. They included Reps. Anna Eshoo, DPalo Alto, Zoe Lofgren, D-San Jose and Ro Khanna, D-Fremont. Eshoo and Lofgren introduced legislation late last year to keep the H-4 spousal work permit program in place.

U.S. Citizenship and Immigration Services, the agency within Homeland Security that manages the program, is “committed to upholding our nation’s immigration laws, helping ensure they are faithfully carried out, and safeguarding the integrity of our immigration system designed to protect the wages and working conditions of U.S. workers,” according to spokeswoman Jessica Collins.

She would not comment on the substance of the regulation, but noted it’s not final until the review and comment process is complete.

Once the White House signs off on the draft regulation, it will be published in the Federal Register. That will start a clock on a comment period, usually 30 to 90 days, after which the administration legally has to review the comments and make any necessary revisions. Only after that can the regulation be finalized, and litigation could potentially hold it up for months or years longer.

Still, the uncertainty of future job status and symbolism of the Trump administration proposal could have immediate ripple effects for families that rely on the visas, and companies struggling to attract top talent.

“If you have 100,000 people who are extremely well-educated, and on the path to getting green cards, and are either indirectly stimulating economic growth or directly creating jobs for native-born Americans by starting companies in this country, why would you pull out the rug from all these people?” said Doug Rand, co-founder of Boundless, a tech startup designed to help immigrants navigate the legal system. Rand also worked on the original H-4 regulation in the Obama administration.

Rand pointed out that, only families already approved for green cards qualify for the work visa, meaning the government has already determined there are no Americans who could be working the high-skilled job. Once approved, they still must wait for the green card to be issued, and the spouses need the H-4 work permit because of the lengthy processing backlog for people from some countries, including India. Until they actually receive their green cards, they remain ineligible to work. Lofgren has coauthored legislation to eliminate per-country green card caps, shortening the wait.

John Miano, the attorney representing Save Jobs USA, said the focus should be on American workers, and argued that the Obama administration overstepped its legal authority to create the work permit without explicit congressional action.

“Why are congressmen creating regulations to protect the jobs of foreign workers when they have done nothing to advance legislation to prevent Americans from being replaced by H-1B workers?” Miano said. He added that the highskilled visas have requirements that spousal work authorizations lack, including proving that Americans could not fill the jobs they are taking.

More than 93 percent of those affected by the potential removal of the work permit are women, which especially concerns advocates.

“It undermines the agency and dignity of these spouses and it harms their career prospects; it leaves them less empowered to leave abusive situations,” said Amanda Baran, an attorney and advocate with the San Francisco-based Immigrant Legal Resource Center and a veteran of the Department of Homeland Security.

“I feel like it’s just another part of Trump’s larger agenda, which is to expel immigrants, prevent them from coming in and make life uncomfortable for them here and compel them to leave,” she said.