In 2015, the Obama Administration DHS issued the H-4 EAD Rule allowing certain spouses of H-1B holders to obtain EADs and work while waiting to become permanent residents. Soon thereafter, a group of high-tech workers, Save Jobs USA, filed suit in the U.S. District Court for the District of Columbia arguing that the DHS lacked authority to issue the rule. The case was dismissed on summary judgment.
Late in 2016, Save Jobs USA filed an appeal. It fell to the new Trump DOJ to respond. Instead of filing a brief in support of the DHS rule, the DOJ, now headed by Attorney General Jeff Sessions, filed a “Consent Motion to Hold Proceedings in Abeyance for 60 Days.” The DOJ asked for and obtained a “pause” to “allow incoming leadership personnel adequate time to consider the issues.” Sessions reportedly referred to the H-4 Rule as a “change [in] immigration law in a way that hurts American workers.” Trump might well agree.
Perhaps seeing the writing on the wall, Immigration Voice, an advocacy group of high-skilled immigrants, along with two named individuals have filed a motion to intervene in the appeal arguing that the Trump DOJ may not zealously defend the Rule. The named intervenors are both entrepreneurs whose business plans are on hold due to the H-4 EAD uncertainty and any jobs for U.S. workers that they might have created are also on hold.
Beyond the possible loss of entrepreneurial activity, if the H-4 EAD is eliminated, U.S. companies that need to hire H-1B workers may find themselves at a competitive disadvantage internationally. Countries throughout Europe, Canada, the U.K., Australia, and others have routinely allowed the spouses of highly skilled workers to work. Because living as a one-income family in the U.S. can be difficult in today’s economy and because without the H-4 EAD spouses may not be eligible for work authorization for 10 years or more, its elimination may make global talent acquisition and retention more difficult. Today, 90% of H-4 visa holders are women and 80% of those are Indian nationals – many are the spouses of H-1B workers in the high-tech industry which may be particularly affected.
The 60-day pause in the legal proceedings in Save Jobs USA case will end in early April. At that time, the Trump Administration may end the uncertainty.
If you have any questions about strategizing around possible loss of the H-4 EAD Rule, please reach out to your Jackson Lewis attorney.