December 17, 2017

Trump Administration Continues to Reform H-1, H-4 Visa Process


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Save Jobs USA vs DHS case screen shot

Save Jobs USA still pursuing the case against H-4 visas

Washington, DC –  The US Administration recently announced a proposal to axe H-4 visa for spouses of H-1B visa holders. The move is not new but a continuation of the fallouts from a presidential executive order from earlier this year (2017). It is to be noted that this change wouldn’t prevent spouses of H-1B holders from pursuing other avenues for work authorization. The H-1B is a common visa route for highly skilled foreigners to find work at companies in the US. It’s valid for three years, and can be renewed for another three years.

On April 18, 2017, the newly elected President Donald J. Trump signed the “Buy American and Hire American Executive Order,” seeking to create higher wages and employment rates for US workers and to protect their economic interests by rigorously enforcing and administering US immigration laws. Although the US Citizenship and Immigration Services (USCIS) and other agencies were asked to work on a combination of rule-making, policy memoranda, and operational changes to implement the “Buy American and Hire American Executive Order,” no concrete changes in laws have emerged.

On the eve of the signing by President Trump in Wisconsin on April 18, two senior White House officials briefed journalists in the Brady Press Briefing room on background. Outlining the measures in the order, the officials said those would ensure that US workers who are just as qualified, willing and deserving to work in the relevant fields were not ignored or otherwise unfairly disadvantaged in the H-1B process.

Giving a glimpse into the President’s vision, the officials had said, “The President believes that the H-1B nonimmigrant visa program must serve the national interest. And he is taking action to ensure that it does.”

On May 26, 2015, the US Administration under the former President Barack Obama provided work authorization to H-4 visa holders, spouses of H-1B visa holders. After many years, since the inception of H-4 visa program, USCIS passed the Employment Authorization for Certain H-4 Dependent Spouses (EAD) rule. The H-4 visa dependent spouses were eligible for work authorization with EAD, provided the H-1B holding husband/wife met certain conditions.

There was a legal challenge to the announcement from Save Jobs USA, a California based organization, which filed a lawsuit challenging the Department of Homeland Security’s (DHS) decision to provide work authorization to H-4 spouses and asking the court to permanently enjoin (i.e., stop) the DHS from issuing such work authorization. Although Save Jobs was unsuccessful in stopping the rule before USCIS began accepting applications, the organization continued its legal attack finding favor with the new Trump administration.

Moreover, after the announcement, Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division said, “The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against US workers.” Wheeler further cautioned, “US workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

Ironically, US Attorney General Jeff Sessions, during his tenure as a US Senator, had termed the granting of work authorization to H-4 holders as a change in the “immigration law in a way that hurts American workers.”

The USCIS has accepted the fact that the H-1B visa program helps US companies to recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country, but noted that many a times American workers, “who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.”

Contrary to the rumor mongering and fear-inducing reports in Indian media, these actions to reform the system are taken by the US government to get tough and stringent in approval of H-1B visas from this year. Indian government leaders, after a trip to the US or when meeting with their US counterparts, always give a statement that they had raised the subject of H-1B visas. However, these visas are at the discretion of the US government and the Indian government has hardly any say in the way these are allotted now, or curtailed in the future.

Even the White House can not change the present quota as USCIS has a Congressional mandate to issue 65,000 H-1B visas in the general category and another 20,000 for those applicants having higher education – masters and above – from US universities in the field of science, technology, engineering and mathematics.


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