H-4 EAD Ban Past Deadline, Still Under Government Review


The federal government is still reviewing whether spouses of
H-1B holders should be able to work, according to a new court filing by the
U.S. Department of Homeland Security.

That program for spouses, known as H-4 EAD, is a frequent
target of critics who argue that it takes jobs away from American workers;
meanwhile, immigration advocates insist that it’s unfair to prohibit the spouse
of an H-1B worker from landing a job and thus contributing to the U.S. economy.

Whatever the arguments, the federal government has seemed
intent on ending H-4 EAD. Earlier this year, U.S. Citizenship and Immigration
Services (USCIS) suggested that doing so would prove “economically
significant,” and ultimately benefit American workers:

“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.”

Even as it proposes ending the program, the government has
also worked to make the H-4 EAD application process far more challenging. As of
February 2019, anyone applying for the H-4 EAD needs to undergo
biometric screening
; by the end of March, a lawsuit filed in U.S. district
court alleged that USCIS was processing H-4 and H-4 EAD applications separately
from H-1Bs, leading to chaos and lengthening approval times.

In an
update to the “Unified Agenda” under the United States Office of Information
and Regulatory Affairs, the original deadline for a
decision on H-4 EAD elimination was supposed to arrive in “Spring 2019,” which
ended June 20. That obviously didn’t happen. Now, in response to a different
lawsuit (“Save Jobs USA vs. DHS”), a Department of Justice lawyer says that the
elimination of H-4 EAD is still under review, including meetings between the
White House’s Office of Information and Regulatory Affairs and “interested
parties.” (Hat
tip to the Seattle Times
covering the lawsuit.)

Given the typically slow pace of
government bureaucracy, it’s anyone’s guess when this H-4 EAD decision will
actually arrive. In the meantime, the Trump administration is revamping the
H-1B application process, complete with new
and more intense review of the type of work that H-1B applicants will
actually end up doing
. Since President Trump’s “Buy American and Hire American” executive
order, which he signed two years ago, the government has suspended premium
processing of H-1B petitions (before resuming it) and planned to completely change
how the H-1B lottery is run—but sweeping reforms haven’t yet taken place.

A recent dataset from the U.S. Department of Labor (DOL)
offers a better view of who is hiring H-1B visa candidates—including the
so-called “secondary entities,” which is a designation given to companies
that use outsourcing to bring in foreign talent. (Using
that dataset, we also identified that H-1B visa hires are most often identified as “software engineers” or “software
developers” by title
, which isn’t exactly the “specialty
occupation” that the visa was ostensibly designed for.) This gives us a better
idea of how major tech companies are using
staffing agencies to pull in even more H-1B workers.