H-1B Spouses Working Under H-4 Visas May Soon Be Forced Out of Work


The United States Department of Homeland Security (DHS) is poised to make a decision on the employment eligibility status of H-4 visa holders, who are the spouses of those here on H-1B visas.

In an update to the “Unified Agenda” under the United States Office of Information and Regulatory Affairs, a decision on H-4 visas is expected to come sometime in May (which is ending soon). More broadly, the decision is poised to arrive in “Spring 2019,” which ends June 20.

The current H-4 visa employment eligibility for spouses of H-1B visa holders was set in 2015. Now, the DHS is trying to turn it upside down. From the proposal:

On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rule-making to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

In February of this year, The United States Citizenship and Immigration Services (USCIS) department proposed ending work eligibility for H-4 visa holders, calling it “economically significant” to do so. The proposal cited “the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs are terminated” as reason to prevent h-4 spouses from employment. More:

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.

The United States Office of Information and Regulatory Affairs falls under the Office of Management and Budget, which has oversight on all “Unified Agenda” policies to make sure they are cost effective. At this point, it could rebuff the H-4 change altogether, but that’s unlikely. It’s part of President Trump’s broader “America First” policy.

If employment eligibility for H-4 visa holders is amended by June 20 as planned, publication of the new rule would trigger a public comment period, where anyone with an interest is free to let the government know how they feel. Unfortunately, this is rarely effective in reversing course, save for very rare instances of truly widespread public outrage.

Back in 2017, when President Trump began prodding at the H-1B visa program, his administration decided that the H-4 visa was a prime target for revision or elimination. At the time, a formal process for revoking work eligibility for H-4 visa holders hadn’t been initiated. Now it seems a decision is imminent.