Trump’s policy on H-4 spouses: A waiting game fewer are willing to play
The Trump administration’s policies toward H-4 spouses—delaying their work authorization while preparing to eliminate their work rights altogether—are disrupting the lives of high-skilled workers and the businesses that employ them.
For over a year, U.S. Citizenship and Immigration Services has been working to reverse the 2015 regulation that allows a subset of H-4 spouses to work, and a rescission regulation could be formally proposed at any time. The agency has recently ended a longstanding practice of concurrently processing H-4 petitions and employment authorization documents (EADs) with the H-1B spouse’s petition, even for those who pay for expedited service. H-4 petitions are now taking months to be approved, despite the government’s own estimate that it takes an average of 24 minutes to process an H-4 renewal and 12 minutes to process an H-4 EAD. What was once a quick and reliable process has turned into a waiting game.
The 2015 regulation had two aims: reduce the personal and financial burden on H-1B families and help U.S. companies remain competitive with countries that allow accompanying spouses to work.1 Rescinding the regulation will have the opposite effect. The majority of H-4 workers are college-educated women from India—75% hold a bachelor’s or master’s degree, and 13% hold a degree higher than a master’s.2 Eliminating their right to work will cost more than $1 billion annually in lost revenue alone. The human costs, while less quantifiable, carry a significant price tag for businesses. Unexpected delays in employment authorization “can destabilize a business and leave mission-critical roles unfilled,” a bipartisan group of senators said in a letter to USCIS in May.
Last month, several H-4 spouses filed a lawsuit to stop the processing delays that are putting their jobs, homes and livelihoods at risk. One spouse has been waiting since January for his documents to be renewed. During the delay, his EAD expired, forcing his employer to put him on unpaid leave. If terminated, he will lose his employer-provided health insurance that covers the family, including the couple’s two U.S. citizen children. Another spouse risks losing her job with an insurance company while USCIS sits on her renewal application. She has passed up a better job because of uncertainty about whether her work authorization will be renewed in time. Some states require an approved H-4 petition to get a driver’s license which means H-4 spouses risk losing their driver’s licenses while their petitions are pending, making daily responsibilities like shuttling kids to school more difficult.
U.S. companies understand that when it comes to expatriate employees, a happy family correlates with higher employee satisfaction and better retention. A spouse who loses the right to work is more likely to move elsewhere, taking along the principal employee. When an accompanying expat spouse is unable to work, it not only impacts the family finances, but also carries personal costs such as social isolation, lack of purpose and domestic tension.3 While lawsuits wind through the courts and Congress debates whether to fix an outdated green card system, many couples are voting with their feet—returning to India to start businesses, or moving to Canada where open work permits are granted to spouses of high-skilled workers as a right and the route to permanent residency is much faster and more predictable.
U.S. policymakers should take a lesson from business. If they want to attract the best and the brightest, as they say they do, they can no longer take for granted that high-skilled immigrants will choose to come here when other countries are shaping their policies to compete for global talent—policies that take into consideration the personal and professional lives of both spouses and the well-being of the family unit as a whole.
Nancy Shalhub is an Associate in the Dallas office of Berry Appleman & Leiden LLP.
1 Department of Homeland Security, “Employment Authorization for Certain H-4 Dependent Spouses,” Federal Register, vol. 80, no. 37, Feb. 25, 2015, https://www.federalregister.gov/documents/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses.
2 American Action Forum, “The Economic Value of Work Permits for H-4 Visa Holders,” Jacqueline Varas, March 20, 2019, https://www.americanactionforum.org/research/the-economic-value-work-permits-for-h-4-visa-holders/#_edn3.
3 University of Tennessee at Chattanooga, “Impact of spousal work restrictions and number of dependents on expatriates’ work life and overall life satisfaction,” Industrial and Organizational Psychology Translational Research and Working Papers, 2018, https://scholar.utc.edu/iopsy/1.
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