Rule to ban H-1B spouses from jobs set to be published in early spring

Justice Department says March date is ‘aspirational’

The U.S. Department of Homeland Security will publish in March a proposed rule to strip work authorization from spouses of H-1B visa holders, the agency said this week in the latest federal government rule-making agenda.

While the announcement in the Unified Agenda should be taken with a grain of salt — the agency has several times missed its own deadlines for proposing the rule — a March date fits with a Department of Justice memo that said the planned rule could be published as early as spring 2020.

However, the Justice Department, which submitted its memo in September to a federal appeals court in a lawsuit seeking an employment prohibition for H-1B spouses on the H- 4 visa, called the spring timeframe “aspirational.”

In that lawsuit, IT workers argue that they were replaced by H-1B visa holders and now must compete against H- 4 holders in the job market. Earlier this month, the workers scored a victory when a three-judge appeals panel in the Washington, D.C. circuit ruled the workers had proven that H-1B holders compete against them for jobs, and that letting H- 4 spouses work increases competition because if they couldn’t work, some H-1B holders would leave. The judges kicked the case back down to federal district court to continue.

The H-1B, intended for jobs requiring specialized skills, has become a target of the administration of President Donald Trump. Under his Buy American and Hire American executive order, federal authorities have dramatically boosted H-1B denial rates, with outsourcing companies hit especially hard. While major Silicon Valley technology firms rely heavily on the H-1B to acquire talent, and push for an expansion to the annual 85,000 cap on new visas, critics point to reported abuses by outsourcers and argue that those companies, and major tech

firms employing H-1B contract labor, use the visa to supplant U.S. workers and drive down wages.

A report released earlier this month by a group supporting an expanded H-1B program said that from fiscal years 2015 to 2019, outsourcers and staffing companies both foreign and domestic were getting hammered with H-1B denials, but that Big Tech saw little to no increase in rejections. Federal government data show that the steepest increase in H-1B denials has come under the Trump administration.

Spouses of H-1B workers on track for green cards have since 2015 been allowed to work. Estimates of the number of H- 4 visa holders with work authorization range from 90,000 to 100,000. University of Tennessee researchers concluded that the vast majority are women from India. Many are employed in the Bay Area.

Homeland Security in 2017 first promised to end the H- 4 work authorization, saying in the semiannual Unified Agenda that it would in February 2018 propose a rule to scrap the authorization.

The agency — named as the defendant in the “Save Jobs USA” case by the IT workers because it promulgated the work authorization under the administration of former President Barack Obama — has several times gotten the appeals court to put the legal proceedings on hold while it works on the H- 4 workban rule. Howard University professor Ron Hira, who studies the H-1B, believes the holdup with the H- 4 rule results from lobbying by groups in favor of letting the spouses work. Homeland Security did not immediately respond to a request for comment.

Publication of the proposed rule is expected to trigger a public comment period. Comment periods for new federal rules typically last 30 to 60 days, but can extend to 180 days or more. Immigration law firm Fragomen has said termination of the H- 4 work authorization “could come within months of the release of the proposal.”