This spring, the Trump Administration indicated that it plans to revoke work authorization for H-4 visa holders and that it would provide details about a new policy by the end of June. That deadline has come and gone, but speculation about what the change might mean for H-4 visa holders is rampant.
Background: Who Are H-4 Visa Holders?
The H-4 visa allows immediate family members (spouses and children under the age of 21) of those holding H-1B visas to live in the United States. In 2015, the Obama Administration issued a rule allowing certain H-4 visa holders to apply for U.S. work authorization. Since 2015, U.S. Citizenship and Immigration Services (USCIS) has approved more than 100,000 H-4 employment authorization documents (EADs) to family members of H-1B holders engaged in the green card process.
In December 2017, the Department of Homeland Security (DHS) gave notice that it was reviewing this 2015 H-4 policy in light of the President’s Buy American and Hire American Executive Order. More information was expected in February 2018, but on February 28, in a status update from the U.S. Court of Appeals for the District of Columbia Circuit, the DHS indicated it planned to delay the proposal, and it anticipated publishing the proposed rule in June 2018. The proposal was not published in June or July 2018, and no further information on this topic has been released.
This new rule must be reviewed by the Office of Management and Budget and requires a period of comment, often 30 to 60 days. It is unlikely that the final rule could be implemented before 2019.
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In my opinion, a best-case scenario for the end of H-4 work authorization would follow the pattern established for people in the United States under temporary protected status (TPS). When the administration revoked that status for several groups, it allowed residents to retain their benefit until it expired or, in some cases, apply for it one final time.
H-4 EADs offer work authorization for between 1 and 3 years, so following that model could give H-4 visa holders enough time to consider alternate visa types that would let them keep working. These include:
- Higher education or government research (H-1B): H-1B visas are notoriously difficult to obtain through the annual lottery, but many people don’t realize that some H-1B-eligible positions are actually immune from the lottery’s limits. H-4 visa holders who are able to secure a job with government research (including research through privatized government labs), an institution of higher education, or a position related to or affiliated with one of these cap-exempt employers may qualify for an H-1B at any time of the year.
- Visas through current employer (H-1B): Another option for obtaining an H-1B visa would be for the H-4 visa holder to ask his or her current employer to sponsor him or her. This year’s deadline to apply passed in April, but it may be an option for next year.
- Student visa (F-1): An H-4 visa holder could enroll in school and secure a job on the student visa. This isn’t ideal for most people, first because school costs money and second because students are typically limited to working just 20 hours per week, and often on campus (though there are some exceptions).
- Business investment visas (E-2): Not to be confused with the EB-5 Immigrant Investor green card program, which can require an investment of half a million dollars, the E-2 Treaty Investor visa requires a much smaller up-front investment. The key here is that investors must be at least a 50 percent owner of the company they invest in. I’ve seen this work with an investment as little as $30,000. It’s even possible to buy an existing business to obtain this visa, but make sure you speak with an immigration law attorney before jumping into any new business ventures. There are also other requirements that must be met in order for an E-2 visa application to be successful.
In my opinion, the worst-case scenario would be to lose the H-4 work authorization program completely, which would mean losing the gains that have been made by the population disproportionately impacted by this policy: women.
This program is good for families and has generally enabled wives of H-1B visa holders to earn wages, pursue a career, and not be financially dependent on their spouses during their long immigration journeys, some in excess of 10 years. Because of the backlogged priority dates of the green card system, Indian and Chinese women in particular are expected to be the most impacted.
What Employers Can Do
Obviously, the stakes are high here for H-4 visa holders with work authorization. If you employ H-1B visa holders whose spouses work via an H-4 EAD, it may be wise to ask if they’d like to talk through their options as soon as possible. Now is the time to explore alternative visa categories and work eligibility.
I strongly encourage you to consult an immigration attorney for guidance. There really is no wiggle room right now to get things wrong.
Allison Kranz, a licensed attorney, is Envoy Global’s Immigration Solutions Partner. Her experience includes handling all aspects of corporate and employment-based immigration law and creating strategies to address the visa, work, and permanent immigration goals of her clients.