Within the next three months, the Trump administration plans on submitting a rule banning certain spouses of H-1B visa holders from obtaining an H-4 visa to work in the United States.
In a Sept. 21 court filing, the Department of Homeland Security (DHS) clarified that timeline, pending final clearances and approvals by officials from DHS, U.S. Citizenship and Immigration Services (USCIS), and the White House Office of Management and Budget (OMB). “DHS is making solid and swift progress in proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization,” the filing reads; in theory, the timeline may extend further if OMB needs additional time to review.
The filing is the latest in a string of legal maneuvers stemming from a lawsuit filed by advocacy group Save Jobs USA, which has argued that DHS is taking far too long in rescinding the rule regarding spouses. (Save Jobs USA is composed of former tech employees who claim to have lost their jobs as a direct result of the H-1B visa.) Throughout 2018, DHS has filed several status reports, insisting that the case shouldn’t proceed because the rule is eventually going away, anyway.
The rule, issued in 2015, extends “eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status.” Reports indicate that as many as 125,000 people are authorized to work via the H-4 visa with an Employment Authorization Document (EAD).
News first emerged in December 2017 that the Trump administration planned to shut down H-4 EAD. At the time, DHS cited the “Buy American, Hire American” executive order that Trump had signed the previous April as the reason behind the movement.
Well before that movement began, Save Jobs USA had been asking for congressional intervention, arguing that the process of issuing the H-4 visa to spouses of H-1 visa holders should be reversed on the grounds that DHS didn’t have the authority to issue such visas in the first place. Save Jobs USA filed its first lawsuit over the issue in April 2015, and the legal battle continues to this day.
For those who feel that H-4 visas potentially take jobs from tech workers who are U.S. citizens, the latest announcement of a shutdown should come as good news. It remains to be seen whether tech companies will push back; they might save their political capital to fight against new, proposed restrictions on H-1B visas.