By Benjamin J. Schatz, Senior Attorney
The H-1B category is one of the most sought-after nonimmigrant classifications for foreign workers in the United States, but for years, a major limitation of the category was the fact that spouses of H-1B holders couldn’t work. Beyond the inability of these nonimmigrant households to have dual incomes like nearly 2/3 of married couples in the United States, H-4 spouses had to put their careers on hold, often for many years.
Since Congress’ passage of the American Competitiveness in the 21st Century Act in 2000, foreign nationals have been able to extend the six-year limitation on H-1B status based upon where they are in the employment-based permanent residence (green card) process. Because the wait times for employment-based permanent residency can be as long as a decade for some nationalities, this meant that many H-4 spouses had to spend more than a decade in the United States with no authorization to work.
In 2015, the Department of Homeland Security resolved this issue by allowing individuals in H-4 status to apply for work authorization when their H-1B spouses reached certain points in their permanent residency processes. When publishing the new rule, the Department stated that the previous “waiting periods [for permanent residency] increase the disincentives for H-1B nonimmigrants to pursue [permanent resident] status and thus increase the difficulties that U.S. employers have in retaining highly educated and highly skilled nonimmigrant workers.” Enacting the new rule was the Obama Administration’s attempt to “reduce the economic burdens and personal stresses that H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to [permanent resident] status while, at the same time, facilitating their integration into American society.”
Since the new rule came into force, tens of thousands of H-4 spouses have been authorized to work. This means that tens of thousands of households can now have multiple incomes (and pay the corresponding taxes), and tens of thousands of spouses can pursue careers of their own in an economy boasting extremely low levels of unemployment.
But despite these positive results, another shift is about to take place. The Department of Homeland Security is preparing to issue a new rule rescinding the current regulation and taking away the ability of these H-4 spouses to obtain work authorization. This will reintroduce a disincentive to immigration that both the limitation on career advancement and the single-income limitation place on immigrant households. This also would affect employers who could no longer employ such workers, hindering America’s competitiveness in an economy with low unemployment.
This is such a step backward in immigration policy.
While the full reasoning of the anticipated reversal won’t be known until it is published, the projected rule is in keeping with the President’s “Buy American, Hire American” policy, which aims to protect the U.S. workforce. But rather than protecting U.S. workers, the more likely result will be the re-imposition of a significant burden on families in the process of immigrating permanently to the United States, stifling their full integration and assimilation into U.S. society and the economy, and depriving U.S. businesses and the United States of much-needed labor in an economy approaching full employment. This is an unnecessary and ill-advised policy change that we don’t need to make.