Make H-4 Visa Holders' Permission to Work Permanent.

• Author: McGee, M. Kevin

The United States has several types of "H-class" visas that allow foreigners to enter the country as temporary workers. Most of these workers receive either an H-l visa to work in occupations that require a college degree or an H-2 visa to work in agriculture. If the worker's spouse or children wish to accompany the worker to the country, they can apply for an H-4 visa.

In a throwback to 1950s-era household division of labor, the legislation creating H-visas allows an H-l visa holder--typically male--to work, but not the H-4 visa spouse. This can create problems in current H-l households, where the spouse usually has a college degree as well and dual incomes are desired.

The government recognized this problem and in 2015 the U.S. Citizenship and Immigration Services (USCIS) issued a rule allowing H-4 visa holders to apply for an Employment Authorization Document (EAD). The agency's justification for the rule was that it would

support the goals of attracting and retaining highly skilled foreign workers and ... ameliorate certain disincentives for talented H-1B nonimmigrants to permanently remain in the United States, [while bringing] U.S. immigration policies ... more in line with those of other countries that are also competing to attract and retain similar highly skilled workers. Since then, over 120,000 H-4 visa holders have received work permits and around 90,000 are currently employed. Over 90% of these EAD recipients are from India.

In 2017 the Trump administration announced that it intended to repeal the rule providing this work authorization, arguing that doing so would create more jobs for U.S. citizens. However, its Department of Homeland Security could never provide sufficient justification for the rule change. It was still pending in January 2021 when Joe Biden took office and withdrew the proposed repeal. Currently, H-4 visa holders can still receive an EAD.

There are three reasons why this status quo is undesirable. First, the rule allowing these applications is under legal attack, and it may not survive the various court challenges it is now facing. Second, the mere fact that the rule authorizing H-4 EADs is under legal attack imposes a risk on H-l households, in part undermining the goals that the USCIS cited in making the rule. And third, the current requirement that each H-4 must file an application to receive an EAD creates a significant amount of unnecessary red tape.

Good idea? I In 20181 helped survey nearly 5,000 H-4...