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Spouses of H-1B Workers Can Keep Their Jobs -For Now

Written By The Shapiro Law Group on February 25, 2020

Despite a lawsuit that was filed by Save Jobs USA to prevent H-4 visa holders from getting employment authorization documents to work in the U.S. when they accompany H-1B visa holders, H-4 visa holders can still continue to work with EADs. In Nov. 2019, an appeals court held that the regulation permitting H-4 visa holders to work could not be abolished and returned the case to the lower court for further consideration. H-4 visas are given to the spouses and children of H-1B visa holders to allow them to travel with them to live in the U.S. for the duration of the H-1B visa authorization period. To work, the H-4 visa holders must first obtain employment authorization documents from the U.S. Citizenship and Immigration Services. However, H-4 visa holders may want to continue monitoring the case and the regulatory moves of the government to watch for changes that might occur.

Save Jobs USA Lawsuit 

Save Jobs USA is a group of IT workers who filed a lawsuit in 2015 after the Obama administration passed a regulation allowing H-4 visa holders to obtain EADs. The workers claimed that they lost their jobs to H-1B visa workers and their spouses because of increased competition. The U.S. District Court held that the IT workers had not proven that they had suffered any injuries. On appeal, the U.S. Circuit Court returned the case to the district court for a further assessment. Save Jobs asked the court to enjoin the H-4 rule while the case proceeded, and the Department of Homeland Security asked the court to instead allow the rule to continue for now. DHS argued against stopping the rule because it did not want the court to substitute its judgment for the judgment of USCIS. This means H-4 visa holders can continue working under their EADs for now. However, DHS may change or rescind the rule, something that the Trump administration has indicated it wants to do.

Pending Rule Change

DHS has had a proposed rule at the Office of Management and Budget for some time. This rule would potentially end the ability of H-4 visa holders to secure EADs so they could work. The proposed rulemaking is scheduled for Sept. 2020. If it is passed and enacted, both employers and families will suffer. Immigrants may instead choose to work in other countries, and employers may have trouble filling positions for highly-skilled workers.