Work permits for eligible H-1B spouses likely to be rescinded under Trump admin

MUMBAI: A lakh plus Indian families are again biting their nails at the prospect of work (employment) authorization being revoked for the H-4 dependent spouse. Members of the Indian diaspora point out that obtaining an employment authorization document (EAD) means much more than financial freedom. It enables spouses to obtain a social security number, open a bank account and get a driving license. In short – be integrated into the American community.

President Trump during his previous tenure had issued the Executive Order – Buy American, Hire American – a slew of measures had then followed including a proposed rule to revoke employment authorization for H-4 dependent spouses.

Just in the nick of time before the rule was finalized, the Biden administration stepped in and the proposed rule was formally withdrawn in January 2021. “Trump’s return to power would likely bring a renewed attack, disproportionately affecting Indian families where highly educated H-4 spouses play critical roles in tech, healthcare, and other sectors. Eliminating H-4 work permits would be a severe economic and personal blow, particularly for families facing a decades-long green card wait,” points out Ashwin Sharma, immigration attorney.

The EAD rule was introduced by the Obama administration in 2015 to mitigate the problems faced by certain sections of immigrants (such as the Indian diaspora) who faced backlogs running into several decades to obtain an employment based green card. As per an analysis by Cato Foundation, the employment based green card backlog from India (EB-2 and EB-3 skilled category) has crossed one million in March 2023. If factors such as death and ageing out are considered (which will lead to these individuals dropping from the backlog statistics) the wait for a green card is 54 years, else it is a whopping 134 years.

Under the EAD rule, in those cases where the H-1B visa recipient is on track for a green card, or has got an extension beyond the permitted six years, the spouse holding an H-4 visa can apply for employment authorization.

The EAD rule has faced several legal challenges. In 2015, an advocacy group of tech workers (Save Jobs USA), who lost their jobs to H-1B visa holders, litigated on the grounds that the Department of Homeland Security was not eligible to introduce the rule. Further, it contended that the right given to spouses to work, took away American jobs and made the H-1B program more attractive. A district court upheld this rule and in 2023, the US department refused to intervene in this decision – and the EAD rule seemed here to stay.

With hiring of US workers to be a priority for the Trump administration, the question is not – will the EAD rule be revoked, rather the question being asked in hushed tones among the Indian diaspora is – when?