A decision by the US Department of Homeland Security (DHS) to defer rollout of a proposal barring spouses of certain H1-B visa holders from seeking employment, provides potential applicants a breather. The date for issuing the draft proposal has been deferred to June from its earlier target of February 2018.
It is estimated that more than a lakh employment authorisations have been given to eligible spouses since the program was introduced in May 2015, a fair portion going to Indians. Immigration experts add that the DHS handles nearly 30,000-odd applications for employment authorisations each year, in addition to requests for renewals.
Issue of the draft proposal in June by the Trump administration will be the first step towards ending the mechanism of granting such authorisations. As of now, there is no date set for publication of the final rule, which will revoke the freedom enjoyed by hundreds of spouses, to find work and an independent standing in the US. The process of bringing in a new rule and rescinding the existing one could take up to the end of 2018 or even stretch to 2019, say immigration experts.
Spouses of H1-B visa holders are granted an H4 visa. They are not entitled to work or carry on their own business unless they obtain an ‘employment authorisation document’ (EAD). However, not all dependent spouses of H-1B visa holders are eligible to apply for an EAD. This route is available only if the H-1B visa recipient is on track for a green card — which means that either the green card petition had been approved or the H1-B visa status had been extended beyond six years pending such approval.
Currently, DHS is still accepting and processing EAD applications and requests for renewals. Processing an application normally takes up to 90 days. However, DHS no longer accepts priority processing applications.
TOI spoke to a spouse of an Indian techie, who obtained an EAD recently. “An EAD means much more than obtaining the right to work. With it I can obtain a social security number and open a bank account.” She cited instances where spouses are subject to domestic abuse, and with no independent means of income, or even a bank account in the US, they find themselves stranded in an alien country.
DHS, a few days ago, in a filing with a district court, announced deferral of the date for publication of the draft proposal (for rescinding the H-4 spousal work authorization program) to June, as revisions to the draft proposal were necessary.
This filing related to an ongoing litigation in the ‘Save Jobs USA’ matter . A group of laid-off American tech workers had filed a suit way back in 2015 to block the rule permitting spouses of H1B visa holders to obtain jobs. The Trump administration on September 27, 2017 requested that this suit be held in abeyance till end of 2017 and subsequently sought further extensions. The district court has now granted DHS’s plea.
Fragomen, a global firm specialising in immigration laws says: “DHS’s announcement means that the H-4 EAD program will remain in place for at least several more months. Once DHS finishes drafting the proposed rule, the Office of Management and Budget (OMB) must review the rule. Post review, DHS is expected to publish a formal notice of the proposed rule in the Federal Register. Organizations and individuals would then have an opportunity to provide feedback during a public comment period. Only then can steps be taken to issue a final rule to rescind the existing program.”
Impact on current H4-EAD holders: Many H4 visa holders who have obtained an EAD say that employers have started to hedge their bets informally. They are reluctant to hire EAD holders in case there is negative action. “In case of job cuts, we are the first to go,” says a former bank teller who worked in Boston. “However, an EAD permits us to take up self-employment and even provide employment to others. I run a small boutique and also rent ethnic garments,” says another EAD holder.
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