US May End Work Permits For H-1B Spouses. Here's Why Indians Could Be Hit Hardest

The Trump administration has revived a proposal to remove H-4 spouses from EAD eligibility. Here is what has changed and what it means for H-1B families.

The Trump administration has revived a proposal that could remove H-4 spouses from eligibility for US employment authorisation. (AI-generated image/News18)

The Trump administration has revived a proposal that could end employment authorisation for certain spouses of H-1B visa holders, potentially affecting families that rely on the second income earned by an H-4 spouse.

The US Department of Homeland Security (DHS) has placed a proposal titled ‘Removing H-4 Dependent Spouses From the Classes of Noncitizens Eligible for Employment Authorisation’ on its regulatory agenda.

The proposal seeks to reverse a policy introduced in 2015 that allows certain H-4 dependent spouses of H-1B workers to apply for Employment Authorisation Documents (EADs).

However, the move has not yet changed the rules. The proposal is classified as a “Long-Term Action”, and the regulatory agenda does not provide a date for publication of a formal proposed rule.

What Has The Trump Administration Proposed?

Under the proposal, DHS would remove certain H-4 dependent spouses from the class of noncitizens eligible to request employment authorisation under the C26 category.

The federal regulatory record says the move would reverse the changes made by the 2015 final rule, titled “Employment Authorisation for Certain H-4 Dependent Spouses”, and restore DHS’s earlier policy of not extending employment-authorisation eligibility to H-4 dependent spouses.

The proposal therefore targets the spouse’s ability to obtain work authorisation, rather than the H-1B worker’s own visa or employment status.

Currently, H-4 status itself does not automatically provide work authorisation.

Under existing USCIS rules, certain H-4 spouses can apply for an EAD when the H-1B spouse is the beneficiary of an approved Form I-140 immigrant petition, or has received certain H-1B extensions under provisions of the American Competitiveness in the Twenty-First Century Act (AC21).

If the proposal eventually becomes a final rule, that eligibility could be removed.

Nothing Has Changed For Existing H-4 EAD Holders Yet

The most important point for H-4 EAD holders is that the regulatory-agenda listing is not a final rule.

DHS has not yet published the formal Notice of Proposed Rulemaking (NPRM) for this measure. The official regulatory record lists the date for the NPRM as “To Be Determined”.

Before the government could make a new rule effective, it would have to publish the proposed regulation, provide an opportunity for public comments, consider those comments and then publish a final rule with an effective date.

That means there is currently no immediate cancellation of H-4 EADs.

Eligible spouses continue to be able to apply under the existing USCIS framework, and people with valid employment authorisation remain covered by the rules currently in force.

The exact treatment of existing EAD holders, pending applications and renewals would also depend on the details of any future proposed and final rule.

Why The H-4 EAD Matters

The H-4 EAD programme dates back to 2015, when DHS allowed certain spouses of H-1B workers pursuing employment-based permanent residence to seek work authorisation.

The policy was designed in part around the lengthy waits faced by H-1B families pursuing green cards. Under the current system, eligible H-4 spouses can work only after obtaining the required EAD.

The programme has consequently allowed spouses to remain in the workforce while their H-1B partners navigate the employment-based immigration process.

The potential rollback could therefore have a direct economic impact on households in which both spouses work.

If employment authorisation were ultimately withdrawn, an affected H-4 spouse could no longer continue working on the basis of that EAD.

The effect would vary considerably between families depending on whether the H-4 spouse is employed, the household’s reliance on that income and what transition provisions, if any, are included in a final rule.

Why Indian H-1B Families Could Be Significantly Affected

The issue has particular relevance for Indian families because Indians make up a substantial share of the H-1B population, while the H-4 EAD has also been widely used by Indian spouses.

A Congressional Research Service analysis cited in recent reporting found that about 93 per cent of roughly 126,853 H-4 EAD applications approved between 2014 and 2017 were for Indian nationals, while 94 per cent were for women.

The analysis also noted that H-4 EAD holders included professionals working in areas such as medicine, STEM, education and technology.

This does not mean that only Indian families would be affected. H-4 spouses of H-1B workers from all nationalities could potentially be covered by a future rule.

For Indian families, however, the consequences could be particularly significant because many H-1B workers and their dependants remain in the US for extended periods while waiting for employment-based permanent residence.

The H-4 EAD has allowed eligible spouses to earn an income and maintain careers during that period. Removing that option could therefore mean the loss of a second household income for families where the spouse is working.

This Is Not The First Attempt To End H-4 Work Authorisation

The administration has attempted to revisit H-4 EAD eligibility before.

During Trump’s first administration, DHS repeatedly placed plans to remove H-4 spouses from employment-authorisation eligibility on its regulatory agenda. The earlier effort ultimately did not result in a final rule.

The federal regulatory record shows the proposal appearing through several agenda cycles before being listed as a completed action in 2021.

The latest proposal is therefore a revival of a policy objective that has been considered previously, rather than an entirely new concept.

USCIS has also previously confirmed that it was working on a proposed rule to rescind the 2015 H-4 employment-authorisation rule.

In remarks released by USCIS, the agency said the regulation would seek to remove certain H-4 spouses from the class eligible for employment authorisation.

H-4 Move Comes Amid H-1B Changes

The H-4 proposal comes as the Trump administration pursues changes to the H-1B system.

DHS recently proposed an additional $103,265 fee for new H-1B cap-subject petitions. The proposal was published in the Federal Register in August.

The administration is also pursuing other changes affecting H-1B workers and employment-based immigration. The H-4 proposal would extend that policy focus to the employment rights of spouses accompanying H-1B workers.

For H-1B families, the combined effect of these measures could therefore be significant if they ultimately take effect.

Source : https://www.news18.com/world/trump-administration-revives-h4-visa-work-permit-ban-proposal-h1b-visa-holders-spouse-employment-authorisation-documents-ead-ws-l-10303050.html