H-1B is an emotional issue for many tech professionals, but few aspects of it are quicker to spark argument than the H-4 EAD, a related program that allows the spouses of H-1B visa holders to work in the United States. Critics argue that the H-4 EAD takes jobs away from American workers, while advocates of H-1B suggest it’s unfair to prohibit a spouse from landing a job and thus contributing to the overall economy.
Now, a new lawsuit filed in U.S. district court alleges that U.S Citizenship and Immigration Services (USCIS) is trying to unfairly delay the distribution of H-4 and H-4 EAD, effectively strangling the program.
Before March 2019, USCIS would review H-4 and H-4 EAD petitions along with the “main” H-1B application. The logic for that was pretty sound, as it would mean approvals (or rejections) for a family all at once. But starting March 22, the lawsuit claims, USCIS began processing these H-4 and H-4 EAD applications separately from the H-1Bs, leading to chaos and lengthening approval times.
There’s yet another wrinkle here. As of February 2019, anyone applying for an H-4 extension must “attend a biometrics appointment and be finger printed,” according to the lawsuit, which claims this requirement is “not required by regulation or statute and was a creation of USCIS not supported by any rule of law.”
As the lawsuit goes on to describe: “USCIS noted that since biometrics would take an average of seventeen days, it was possible that the H-4 and H-4 EAD would still be pending after an H-1B was adjudicated in the fifteen days required for premium processing. USCIS stated that they would take steps to adjudicate these H-4 and H-4 EAD applications in an expeditious manner.”
After that point, however, USCIS decided to divide the H-4 and H-4 EAD processing from H-1Bs, resulting in processing times of eight months or more for the H-4 and five months or more for H-4 EAD.
“The H-1B extensions have been granted, but the H-4s continue to wait, losing out on jobs, health insurance, and drivers licenses because they did not receive their EADs timely,” read a blog posting by Reddy & Neumann, the law firm representing the plaintiffs. “We seek to force USCIS through litigation to adjudicate these renewals in a reasonable time as required by the Administrative Procedures Act. Reddy & Neumann, P.C. stands ready to advocate for fair and timely adjudications for the high-skilled legal immigrant community.”
But all this might prove a moot point, as the H-4 EAD is slated for death. In February, USCIS also issued a proposal to remove “H-4 dependent spouses from the class of aliens eligible for employment authorization,” labeling it “economically significant.”
At the time, the agency emphasized how this move would play into the Trump Administration’s broader “Buy American and Hire American,” an executive order signed in early 2017: “Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”
That invited some huge blowback from supporters of H-4 EAD and visa programs in general. “Taking away a spouse’s ability to work will make the U.S. a less attractive destination for top-tier talent. The skills gap in the U.S. remains profound, with 60 percent of U.S. employers saying they have job openings that stay vacant for 12 weeks or longer,” Richard Burke, CEO of Envoy Global, which guides clients through the immigration process, wrote in an email to Dice at the time.
A final decision on H-4 visas is slated to arrive sometime soon, but it may face challenges in court and Congress. In the meantime, USCIS has taken steps to disrupt H-4 EAD (at least if you believe the lawsuit).Visa approvals have been declining since the beginning of the Trump administration, and it’s an open question whether further policy tweaks will accelerate that dip.