A14 Us sPeCIAL/IMMIGrAtION reFOrM India Abroad June 13, 2014
manent residency. Therefore, even if the proposed change
to the law were to take effect, H-4 visa holding spouses will
still be prohibited from working for at least six years (
duration of H1-B visa before being eligible to file for permanent
residency) if not more.
Given that women are the main recipients of the H-4
visas, it still keeps them off the labor force for more than
half a decade adding to the disadvantages that already
exists for women and women of color in the US labor markets.
Additionally, applying for a permanent residency for a
H1-B visa-holding worker is the prerogative of the employ-
er. What this means is that many H-4 visa-holding spouses
may never be eligible for a work permit or have an identity
of their own during their stay in the US. This goes against
the government’s goal of creating policies to retain the
As the DHS proposal proves, it is clearly in the US government and corporate sector’s interest to retain migrant
high-skilled workers. The US seems to be moving in the
right direction by proposing to reform the dependent visa
laws. But with only partial effort toward change there will
continue to be avoidable issues in the unforeseen future.
Pallavi Banerjee, a post-doctoral fellow at Vanderbilt
University, is working on a book about dependent visas
and gendered migrations.
May 12, the Department of Homeland Security published pro- posed regulations that, once finalized, will allow certain H-4 spouses of H-1B
visa holders to apply for work authorization. Although the DHS states that it considered extending employment authorization to all H-4 spouses, fearing challenges
from anti-immigrant groups, it ‘rejected
this alternative as overbroad’.
As written, this proposed rule only permits an H-4 beneficiary whose H-1B
spouse has taken substantial steps to attain
lawful permanent resident status (a Green
Card) through the employment-based
process to be eligible for work authorization. By this program, the DHS ‘intended to
remove the disincentive to pursue the
immigration process’ caused by the Green
Card backlog, and align the United States
temporary employment visa market with
Canada and Australia.
This rule does not achieve those goals,
because those countries do not place similar limits on work authorization for spouses of skilled workers.
The proposed measure is a
welcome change, but it is not
enough for the Obama administration to put a band-aid on a
severed leg. It is time to make
your voice heard by submitting
comments to DHS, because an
H-4 spouse should be allowed
to work akin to spouses of L and
E visa holders.
The DHS estimates that in the
first year, approximately 100,000 H-4 visa
beneficiaries would be eligible to apply for
work authorization and 35,000 per year
thereafter. These men and women come to
the United States because their spouse is
employed by a company in the US on an H-
1B visa and under this proposed rule, the
H-4 spouse would wait until the Green
Card process is started to apply for work
authorization — most likely the spouse has
waited, without working, for six years.
This potentially six-year delay is exactly
how this rule does not put the US on par
with Canada and Australia: Neither of
those countries limits work authorization
for the spouses of skilled employees in this
In those first six years, had the spouse
been work authorized, s/he could have
been a founder of the next social media
company, the tastiest dumpling or Samosa
company, or a researcher who develops a
cure for cancer — all the while contributing
to the US economy. But we will never know
what that spouse could have done in those
first six years, because this rule does not
allow all H-4 spouses to work as is permit-
ted for the spouses of other nonimmigrant
work visa holders.
Unlike the L visa, which does not have a
cap, the US caps new H-1B visas at 65,000
annually. Permitting all H-4 spouses of H-
1B workers would not even equal the number of seats in Giants stadium!
The DHS acknowledges that work
authorization for H-4 spouses who have
taken steps towards attaining permanent
residency ‘would result in a negligible
impact on the US labor market given the
size of the US civilian work force,’ so why
hasn’t DHS written this rule more broadly?
Some advocates of this rule argue that
narrowly writing this rule makes it less
likely to succumb to challenges in court,
but challenges are not likely to succeed in
either scenario because the DHS, as the
agency implementing immigration laws,
has the authority to issue regulations that
are consistent with immigration laws.
Federal immigration laws do not prohibit
H-4 visa holders from receiving employment authorization, and the DHS has the
power to amend its regulations to issue
employment authorization to all H-4 visa
Others, such as US Senator Charles
Grassley, argue that this will cause companies to hire lower-paid foreign workers.
However, recent research has shown that
H-1B workers make great contributions to
the US economy generally and H-1B
employment in cities increases wages for
both non-college and college-educated
It is unfortunate that members of the
Republican Party use faulty data to support
their unfortunate stance on measures to
improve the immigration laws and regulations of the US.
The numbers don’t lie: The DHS is taking
the easy way out. From 2007-2012 approximately 130,000 dependents of the H1, H2,
and H3 visas entered the US annually on
the H-4 visa. Even if all 130,000 H-4 visa
holders became work-eligible each year,
The DHS’s own calculations determined
that this would only be a ‘fraction of a percent’ of the US civilian labor force, and as
such it would have a negligible effect upon
the work force.
More specifically, H-4 work authorization
is most beneficial for employees from countries with a long waiting line in the US,
such as India (as such, citizens of countries
facing a long backlog to permanent residency are most likely to seek H-4 work
Of the 96,000 H-4 visas issued worldwide in 2013 (this number includes visa
renewals), 72,000 were issued to citizens of
India. So what the DHS has done is to
reduce the unemployed waiting time of an
H-4 spouse from 16 years (the employer
can wait six years to file for permanent residency and then the backlog for an Indian
worker is 10 years), to six years. This is not
enough! The DHS has the power to issue
work authorization to all spouses of H-1B
visa holders, and it is a disgrace that we are
willing to accept any less.
It is time that we accept DHS’s invitation
to comment on the proposed rule
USCIS–2010–0017 at www.regulations.gov
Please go to
tion-news/ to see the comments the author
submitted to the DHS.
Tina R Goel is an associate at the Law
Offices of Mark Shmueli, an immigration
law firm in Maryland. E-mail:
Why the proposed rule change for H-4 visa holders is not enough, and what you should do about it
TINA R GOEL
Crisis of dependent visas:
A REALITY CHECK
Thanks, with criticism
Homeland Security Secretary Jeh Johnson.
JONATHAN ERNS T /REUTERS