H-1B employees brace for regulation eliminating spouses’ right to work

Peter B. Bade
Peter B. Bade 21 Dec, 2018

The Trump Administration is expected to propose a regulation that would take away the right to work of H-1B workers’ spouses, which will impact the ability of companies to attract foreign workers to high cost-of-living locations like Silicon Valley.

Currently, spouses of certain H-1B workers who are already in line for a green card are eligible to apply for an employment authorization document, or EAD, that allows them to work legally in the U.S. The regulation, known as the H-4 EAD rule, was promulgated by the Department of Homeland Security (DHS) under President Obama in February 2015 and has since allowed more than 100,000 spouses to gain work authorization. The regulation faced an immediate legal challenge from Save Jobs USA, an organization of tech workers who claimed that their jobs would be displaced by H-4 spouses. Save Jobs USA lost in district court and appealed to a federal appeals court in Washington, D.C. Under President Trump, DHS has successfully held the case in abeyance, arguing that the appeals court should hold the case while the agency works to undo the regulation (in part to carry out President Trump’s 2017 “Buy American and Hire American” executive order).

The ability of a trailing spouse to work in the U.S. is an important factor for H-1B workers in determining whether they will be able to live and work in certain high-tech hubs. Most spouses of H-1B workers are college-educated, have their own careers and aspirations, and are not willing to put their American dreams on hold. The H-4 EAD rule is limited to cases where the H-1B worker has already made significant progress in his or her company-sponsored green card case—considering that some wait times are currently more than 10 years for some Chinese and Indian nationals, losing work eligibility is more than a temporary sabbatical for affected H-4 spouses. And in many cases it’s not a matter of choice—two incomes are required for families to survive in high-cost areas like San Francisco and similar tech hubs. These concerns have prompted two California members of Congress, Democrats Anna Eshoo and Zoe Lofgren, to introduce a bill that would protect the H-4 rule against repeal. The bill is unlikely to stop the rulemaking process, which is already underway, but has a better chance of gaining Congressional momentum after the new Democrat-controlled House is seated in January.

What should employers and H-4 spouses expect in the coming months? We expect a proposed rule to be published in the Federal Register that would remove H-4 spouses from employment-authorization eligibility, and the rule will go through the formal regulatory process, which takes four to six months to go from a proposed rule to a final regulation. If the proposed rule is published this month, the earliest possible date that H-4 work authorization could be terminated is spring 2019. If the new rule is approved, litigation may further delay its implementation. For planning purposes, an important question is whether the proposed rule will include a transition period allowing spouses currently holding H-4 work authorization to wind down their work or renew their employment authorization documents until a specified future date. Employers will also need to plan for the loss of H-4 employees and in the long term may find it more challenging to attract international high-skilled workers and their families to the U.S. as a result of the impending repeal of the H-4 EAD regulation.

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