Revoking work permits for H4 spouses may face hurdles in court

With authorities announcing that work permits for the spouses of H-1B workers will be revoked, some 90,000 people have been in a limbo since early this year. But last week it appears that discarding the Obama era work program may not be an easy walkover for the Homeland Security department, after all.

In what was seen as an encouraging development, the U.S. Court of Appeals for the District of Columbia allowed Immigration Voice, a nonprofit working to alleviate problems faced by legal high-skilled foreign workers in the U.S, to join the case as an intervenor.

The motion to intervene was filed by Immigration Voice almost a year ago, arguing that it doesn't look like the DHS was really defending itself against a lawsuit filed against it by Save Jobs America, an organization of IT workers that claims Americans lost their jobs to the influx of H-1B workers and filed a lawsuit against the DHS in 2015 to keep the new Obama era program for H4 EAD from going into effect.

The Immigration Voice in its intervenor brief told the court that the case is about people really impacted by the proposed revocation of work permits for the H4 spouses, but they are the ones not represented in the case.

“The motion to intervene on this ground to represent the voice of the affected H4 EAD community was accepted by the U.S. Court of Appeals in DC last week which means we are now an approved party to the case and our team of lawyers will now make arguments on behalf of intervenor-appellee Anujkumar Dhamija and Sudarshana Sengupta, for the entire H4 EAD community in the U.S.,” Vikram Desai, vice president of Immigration Voice told India Abroad.

In 2016 the Immigration Voice noted that a significant number of people benefit from spousal work authorization fix by President Obama as a lot of H4 spouses have started new startup businesses creating more jobs in America while others have started practicing medicine or joined a residency program, providing healthcare services to hundreds and thousands of Americans.

“It will be unfortunate if this regulation is repealed because such an event will have severe impact on the U.S. economy and will have devastating effect on the families who benefit from this Obama- era regulation by either opening up their own business or by contributing to US businesses,” Aman Kapoor, the co-founder of Immigration Voice, said in letter to the H4 EAD community. Kapoor also said Immigration Voice was going to strongly oppose any proposal to repeal the “common-sense” H4-EAD regulation.

A year earlier Save Jobs USA filed a lawsuit against DHS to keep the new law from going into effect. It claimed the new rule harmed American workers seeking employment because it made the job market more competitive and difficult for Americans and it also alleged the DHS did not even have the authority to grant EADs to H-4 visa holders in the first place.

A Federal district court dismissed that argument in 2016 because “Save Jobs USA” reportedly could not prove that the H4 EAD eligible persons would negatively harm Americans. That lawsuit has since been appealed and is now being heard by the U.S. Court of Appeals for the District of Columbia.

The administration, which is following ‘Buy American Hire American’ Executive Order signed by President Trump to protect Americans’ economic interests by rigorously enforcing and administering the immigration laws, has moved ahead with its proposed regulation, despite strong resistance from a group of U.S. lawmakers, including Senator Kamala Harris, (Democrat, California) and Silicon Valley companies who have argued that scrapping H4 EAD is not only anti-women, but it also prevents talented spouses of H-1B visa holders from working in the U.S.

A majority of people on H4 EAD are women and are spouses of IT and other high- skilled workers from India on H1-B visas. Most of the women are themselves highly educated and some of them have STEM-related degrees.

In February this year, a group ‘Save H4-EAD’ launched a campaign on the Internet and through social media urging authorities not to cancel H4 EAD. In a tell-tell sign of anxiety, one H-4 worker wrote on the group’s website that those who had applied for H4 EAD are contributing to American society instead of creating burdens.

“We are talented, highly skilled and experienced individuals. Why should we suffer because we are citizens-in-waiting for 8-15 years? You have agreed to make us citizens, treat us like one,” one unidentified woman wrote on its website.

Mumbai-born Netra Chavan, who had pursued a career in business development and management before moving to the U.S. in 2006 along with her husband, who works for Apple, remembers how her difficult journey on H4 visa begun when before the EAD for H4 spouses she could not even take up voluntary work or work in a library or a nonprofit organizations.

“I suffered instability and insecurity all those years in the U.S. as I could not work despite that fact that like many other H-4 spouses from India, I am educated. This was very much challenging for us as a family and has always been a very frustrating wait that cripples you not only financially but mentally and psychologically,” Chavan, who got her permanent residency in 2016, told this correspondent.

While the Immigration Voice joined the case in the Appeals Court in DC as intervenor, new reports said the IT Industry Council representing major Silicon Valley companies like Goggle and outsourcing firms like Cognizant and TCS, have also filed a court brief supporting employment for H-4 holders.

Reports in Mercury News and other media outlets said last week that the IT Industry Council was joined in the brief by the U.S. Chamber of Commerce and the National Association of Manufacturers in support of employment for the spouses of H1B workers.

The IT industry Council has argued that giving work authorization to an estimated 91,000 spouses of H-1B holders has had significant, positive effects on the U.S. economy as a whole.

In a letter to In 2017, the U.S. Chamber of Commerce along with the Council for Global Immigration as well as National Association of Manufacturers and Semiconductor Industry Association (SIA) sent a letter to U.S. Citizenship and Immigration Services supporting H4 EAD holders.

“It is a function of the failure to reform our nation’s immigration system that this group of H-4 spouses—the majority of whom are women—continue to face uncertainty and may be prevented from working while they wait for bureaucratic backlogs to be cleared,” the letter addressed to USCIS, said.

In November last year, two U.S. representatives introduced a legislation in House, prohibiting the Trump Administration from revoking the Obama-era rule extending work authorization to qualified spouses of H-1B visa holders.

Anna G. Eshoo (CA-18) and Zoe Lofgren (CA-19) introduced the H-4 Employment Protection Act legislation, arguing that the revocation of work authorization to the spouses, including thousands of immigrants in Silicon Valley, because such revocation would create “panful choices to either split up their families or return to their home countries.”

They argued that H4 spouses, many of whom themselves are highly skilled professionals, are stuck in line for green card and cannot pursue their professional goals and cannot contribute to US economy.

“The Trump Administration believes they should sit on their hands and do nothing, even though many are accomplished, qualified, and highly-skilled. Prohibiting H-1b dependent spouses from working is of no benefit to our country, and if allowed to move forward, many of these families that can contribute so much to our workforce will simply move to countries with a more sensible approach to immigration,” Lofgren said.

“This much-needed bill will block the Trump Administration from needlessly harming our economy and the lives of skilled immigrant families,” Lofgren added.

While the introduction was welcomed by Indian-American high-tech workers in Green Card limbo, they said what was needed was a permanent solution.

“If we get legislative solution to this issue, it would be a huge relief for H4 spouses. However, this is a temporary solution as it is still dependent on the status of the primary applicants. If the primary applicant loses his/her status in this country due to the long green card wait, dependents lose their status automatically,” Harshit Chatur of Skilled Immigrants in America, told this correspondent.

People like Vikram Desai of Immigration Voice has a similar take on the situation of high-tech workers. He said Immigration Voice has for the past ten years been seeking to bring about a fundamental change in immigration laws to allow for permanent residency for high-tech and other guest worker visas without having to wait for ages as has been the case especially with Indian H1B workers thanks to per-country quota system.

He said that solutions like H4 EAD are sort of band aids that cannot solve the fundamental problems in the U.S. immigration system which is based on archaic rules and are far removed from the ground realities of today.

“That is why we are looking with hope to the passage of the Fairness for High-Skilled Immigrants Act which is in the Congress with about 290 co-sponsors and we have always been advocating for legislative action rather than some small band aid kind of solutions for problems here and there,” Desai said.

Sen. Kamala Harris (D-CA) who has announced candidacy for 2020 presidential election along with Mike Lee (R-UT), introduced the Fairness for High-Skilled Immigrants Act that would also adjust per-country limits for family-based green cards.

An identical bill was tabled in the House of Representatives by Congressman Lofgren and Ken Buck, Chair and Ranking Member of the House Judiciary Subcommittee on Immigration and Citizenship.

To a question, about the revocation of the H4 EAD, Stuart Anderson, Executive Director of National Foundation for American Policy, said he believes that the “it seems likely the administration will move forward fairly soon” with a rule to rescind H-4 EAD.

But he said that, there is no policy justification for preventing the spouses of H-1B spouses from working because they have excellent skills and want the opportunity to work, and have already shown an ability to fill jobs or start businesses that contribute to America.

“It makes no sense for the administration to say it favors ‘merit-based’ immigration while stopping many high-skilled people from working and encouraging entire families to leave the United States in search of better opportunities.

“Companies and associations assisting in legal actions to support H-4 EAD has been a welcome development, both for the H-4 EAD beneficiaries and for those who favor a more rational legal immigration system in the United States” Anderson said.

Desai admitted that while the DC Appeals Court’s allowing Immigration Voice to join the as an intervenor is by itself not a cause for “great celebration” by members of the H4 EAD community, it certainly has given the H4 EAD community a moral boost because their voices and their side of the story will at least be heard in the court now as there will be legal arguments and challenges to DHS on revocation of the rule.

“If one takes a larger look at immigration, one will be convinced that the Trump administration is seeking to curb legal immigration by various means, including visa denials, increasing RFEs (request for evidence) during visa renewal applications and various other means. Revocation of H4 EADS is just another part of the whole problem in immigration in the Trump era,” Desai said.

To a question, Prakash Khatri, former USCIS ombudsman and a Bush appointee, said he feels that the H-4 EAD program is an important visa mechanism that has allowed primarily well-educated spouses of highly-skilled temporary workers to become gainfully employed in this country and fill some of the skills gap that exists at a time of record low unemployment.

“The United States Congress has failed in its responsibility to pass legislation to increase temporary worker visas for much-needed skilled and unskilled workers. The H-4 EAD program has helped in a small way to help with the shortage. It should be remembered that all H-4 EAD workers are spouses of H-1B workers and so any added income is taxed at the same rate or higher rate than the current H-1B workers salary,” Khatri told India Abroad.

Khatri noted that as a nation America is benefitting greatly from not only the skills of these H-4 spouses but also the high taxes they pay even for relatively low wages since the combined earnings of both spouses is used.

“I think the Trump administration is finally waking up to the reality that this nation can only prosper from the H-4 EAD program at this time of record low unemployment.

“Hopefully, this administration will begin moving in the direction of more legal immigration to fill the needs of the US employers that cannot compete with the rest of the world without the flow of legal immigrants that make this nation great,” Khatri said, adding that “I am hopeful that at least for now, the H-4 EAD program will continue.”

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