Beginning of the End of the H-4 EAD

By Rishi P. Oza

The Trump Administration recently submitted a proposed rule change to the Federal Register to eliminate the wildly popular Obama-era H-4 Employment Authorization Document (“EAD"). The H-4 EAD has allowed tens of thousands of H-4 spouses (mostly of Indian descent) to work lawfully in the United States while awaiting the completion of their green card processing. These spouses, often highly educated, but unable to secure their own independent work authorization, due largely to the artificially low number of H-1B visas allotted annually, have been able to use the H-4 EAD to obtain jobs in a myriad of professions, including information technology, teaching and the service industry. The Trump Administration's proposed rule change will relegate these qualified and industrious back to the sidelines of the US economy.

Historically, H-4 spouses were not authorized to work. This restriction was not based in Congressional statute, but instead upon the US Citizenship and Immigration Service's interpretation of Congressional intent (i.e. regulation). Regulations made clear that H-4s were ineligible to apply for employment authorization and given the strict nature of the green card process, most H-4 spouses never risked working without authorization, knowing that even a simple violation could undo years and years of wait for a green card. All of these changed when the Obama Administration implemented a rule permitting H-4 spouses to work provided that their H-1B spouse had obtained an approved I-140 petition.

The I-140 serves as a foundation upon which the green card is built and securing approval typically meant that the question of whether an individual obtained permanent residency status changed from “Will I get a green card?" to “When will I get a green card?" While the I-140 approval itself does not guarantee permanent residency status, it does represent a clearing of a major hurdle in the process.

The Obama Administration recognized that the approval of the I-140 alone did not confer any particular benefit upon the H-4 spouse and given Congressional intractability on any type of reasonable immigration reform. The molasses-like nature of the green card process has impacted mainly Indian and Chinese nationals, some of whom have to wait nearly a decade to receive a green card, compared to other nationals that wait 18 months. As a result, the Obama Administration introduced the H-4 EAD rule to permit H-4 spouses to apply for two-year EADs and USCIS statistics show that an excess of 70,000 individuals have taken advantage of the H-4 EAD.

As with many Obama era regulations, President Trump is taking steps to undo the deeds of his predecessor, arguing that H-4 EADs take away valuable, well-paying jobs from qualified American workers and ultimately undercut wage gains by US workers. Although statistics don't entirely support this argument out and with employers already squeezed for finding qualified and skilled labor, the Trump Administration's approach has caused critics to argue that the recommended regulatory revision is shortsighted and will only sting an economy that is already facing a serious talent crunch.

While forcing H-4 spouses out of the workforce may help to raise wages in the short-term (employers may need to offer higher wages to attract workers with the skills demanded for the position), the Administration has not provided any coherent explanation as to where an economy already at full employment is going to replace such a number of highly skilled workers. Moreover, while immigration has historically helped to fill in labor shortages, Congress has made no moves to update H-1B numbers that have remained stagnant since the turn of the century, despite the economy changing dramatically in that same time.

All in all, while change is always inevitable within the immigration field, immigrant rights groups and America's business leaders alike are lamenting a decision by the Trump Administration that will markedly impact the complexion of the current labor force and the lives of countless families.

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Rishi P. Oza is the Partner at Robert Brown LLC, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com