May 15, 2019 News » Cover Story

Thousands of legal, highly skilled immigrants, mostly women, could lose the right to work 

Forced Out

click to enlarge Jayanna and her husband. - COURTESY JYOTHI JAYANNA
  • Courtesy Jyothi Jayanna
  • Jayanna and her husband.

Jyothi Jayanna moved to Aurora from India with her husband in 2014, after he secured a job with an American tech company that agreed to sponsor his H1-B work visa.

Jayanna had education and work experience in the software industry, and she began applying for jobs after the newlyweds arrived in Colorado. But when prospective employers kept asking about her work permit, Jayanna soon came to a disturbing realization: Though her H-4 visa allowed her to remain legally in the U.S. as the spouse of an H1-B visa holder, it didn’t authorize her to work.

“Sitting at home, doing nothing, is really difficult,” Jayanna recalls of the year she spent without a job. “I have to depend on my husband for everything... I used to cry every day, like, ‘I cannot use my knowledge.’”

Jayanna applied for a green card to get lawful permanent resident status — which would give her the ability to work — but she estimates that process will take 20 years or longer, given the per-country limits that disproportionately affect Indian workers (more on that later).

However, in 2015, an answer arrived when U.S. Citizenship and Immigration Services implemented a new rule: “Employment Authorization for Certain H-4 Dependent Spouses.”

click to enlarge feature1-3.jpg

That rule allowed people on H-4 visas (spouses of H1-B visa holders) who’ve started the green card application process to apply for H-4 employment authorization, known as H-4 EAD. Since then, more than 120,000 people, the majority of them women from China and India (including Jayanna), have received the work permits.

But in response to President Donald Trump’s “Buy American and Hire American” executive order in April 2017, the Department of Homeland Security, the umbrella agency that encompasses U.S. Citizenship and Immigration Services, began working to rescind H-4 EAD.

The proposed rule rescinding the program remains under review by the Office of Management and Budget, meaning that the public comment period will likely open within the next month or so — in time for an official demise for H-4 EAD as early as September, if all goes as planned.

“USCIS continues reviewing all employment-based visa programs, including H-4 EADs,” notes Jessica Collins, a spokesperson for U.S. Citizenship and Immigration Services, in an emailed statement. “No decision about the regulation concerning the employment eligibility of certain H-4 spouses is final until the rulemaking process is complete.”

Threatened with removal, the H-4 EAD program has found supporters in high places. In January 2018, 10 powerful tech industry and business groups, including the U.S. Chamber of Commerce, urged the Department of Homeland Security not to rescind the rule, arguing that H-4 visa holders “often have experience and education in vital occupations — from academic researchers, to medical technicians and professionals, to the owners of small businesses who help create jobs for Americans.”

In May 2018, 130 members of Congress showed bipartisan support with their own letter, including a handful from Colorado, among them now-Gov. Jared Polis.

“The opportunity for H-4 visa holders to work has made our economy stronger, while providing relief and economic support to thousands of spouses — mostly women — who have resided in the United States for years,” they wrote.

In the meantime, thousands of people with H-4 EAD visas from across the country joined a Facebook group, called “SaveH4EAD,” to share information about the removal process and raise awareness for their cause.

Most are Indian and Chinese. That’s because U.S. immigration law dictates that no more than 7 percent of green cards can be allocated to any one country. While immigrants from smaller countries have better chances of getting a green card soon after applying, the sheer volume of applicants from India and China means they can face wait times of 15 to 20 years.

A survey of 2,400 members of the SaveH4EAD Facebook group, provided by a spokesperson, found that 94 percent were women, and 58 percent had U.S.-born children. Fifty-nine percent had a postgraduate or professional degree, and 96 percent had a bachelor’s degree.

Tatiana Bailey, director of the University of Colorado at Colorado Springs Economic Forum, says ending H-4 EAD doesn’t make sense for the current U.S. and local economy.

“Mostly because of the rapid technological changes that have happened in the last 20 years or so, we’re just simply not able to produce enough [American] graduates in the highest demand occupations,” she says.

Jayanna has held her current job as a software development engineer for more than two years. She’s now pregnant, and purchased a house with her husband.

“We thought my job will be secured, so yeah. We invested in many ways,” she says.

click to enlarge SaveH4EAD members met with the Office of Management and Budget in March to advocate for their cause. - COURTESY SAVE H4EAD
  • Courtesy Save H4EAD
  • SaveH4EAD members met with the Office of Management and Budget in March to advocate for their cause.

While the H-4 EAD program has found support from industry groups and some legislators, it’s also faced opposition since the beginning from people who say it takes jobs from Americans.

Before the rule was implemented in 2015, a group of information technology workers called “Save Jobs USA” filed a lawsuit arguing that the Department of Homeland Security did not have the authority to allow work authorization for H-4 visa holders. A federal judge dismissed the suit in 2016, but Save Jobs USA appealed that decision, and the case has dragged on since then.

In April, Homeland Security asked the appellate court to toss the suit, Law360 reports, saying that the Trump administration’s pending move on H-4 EAD would make the case meaningless. But for now, the case continues.

Homeland Security has emphasized that rescinding H-4 EAD is a priority given Trump’s “Buy American and Hire American” executive order, which directed the department to develop rules and policies that put U.S. workers first and to crack down on fraud and abuse in the H1-B visa system.

“The administration has been relentlessly pursuing merit-based policy and regulatory immigration reforms, including a thorough review of employment based visa programs so they benefit the American people to the greatest extent possible,” says Collins, the U.S. Citizenship and Immigration Services spokesperson.

According to a timeline from redbus2us.com, which provides information for immigrants about studying and working in the U.S., the soonest H-4 EAD could be revoked is September. The timeline accounts for review of the proposed rule revoking H-4 EAD by the Office of Management and Budget (OMB), followed by the publication of the proposed rule and a public comment process.

Some involved in advocacy efforts for H-4 EAD had thought the proposed rule would be released by now, as OMB was expected to discuss it at a May 1 meeting.

But John Miano, a lawyer for Save Jobs USA, said in a recent online post that he was skeptical the rule would be approved, “because the Deep State that President Trump has allowed to remain at DHS has sabotaged every attempt the administration has made to rescind Obama’s unlawful work authorizations.”

Miano believes the fate of H-4 EAD will instead be decided in court.

Jayanna has tried to make contingency plans ahead of the rule’s expected publication. She says her company attempted to sponsor her for an H1-B visa but did not get a spot in the lottery.

While some people with H-4 EAD might get lucky and be able to switch to an H1-B, those visas are only useful in certain industries — ones where employers can show there is a lack of American workers able and willing to fill the positions they need.

“Somebody who’s a dentist ... you won’t find companies who sponsor an H1-B from them,” says J Kumar, a spokesperson for the SaveH4EAD Facebook group, explaining that it's difficult to find employers to sponsor workers in non-technology-related fields.

“Aish,” an Indian immigrant with experience in the clinical research industry who recently applied for H-4 EAD (she asked that we not use her full name, as her application is pending), doubts she could find an employer willing to sponsor an H1-B for her.

Aish moved to Denver with her husband, a software engineer, in 2015. At the time, she was eight months pregnant.

She’s spent the last few years at home with her son, but wants to get back to work. If H-4 EAD is revoked, Aish says, the family plans to look at “other options,” such as moving back to India, or to another country where she and her husband could both support the family and plan for their child’s future.

“We are feeling really good about coming here, and we’re having such opportunity,” Aish says. “Only problem is that I’m not able to help my husband financially.”

Other categories of immigrants

The U.S. has over a dozen categories of work visas, and several other ways immigrants can work and live here temporarily or start the path to citizenship. Here are just a few.

Work visas:
Temporary worker visas allow foreign nationals to work legally in the U.S. without obtaining permanent residence. The categories that come up most often in policy debate are H1-B, H2-A and H2-B.
H1-B (Specialty Occupations):
This visa program allows companies to petition for foreign workers with at least a bachelor’s degree or the equivalent, often to fill science- or technology-related positions. About 85,000 H1-B visas are available each year, with 20,000 reserved for advanced degree holders. The visas are valid for three years and can be renewed for another three.
H-2A (Agricultural) and H-2B (Non-Agricultural):
H-2A and H-2B visas are used for jobs that don’t require higher education, with agricultural positions covered under H-2A and other types of employment (such as hospitality and construction jobs) under H-2B. There is no cap on the number of H-2A visas that can be issued annually. The annual limit for H-2B visas is 66,000. (President Donald Trump announced we would accept an additional 30,000 this year.) The length of stay can vary based on the job, but may not exceed three years.
Deferred Action for Childhood Arrivals (DACA):
DACA began in 2012 under the Barack Obama administration. Under the program, undocumented immigrants who were brought to the U.S. as children can receive temporary deferred-action status, meaning they can drive and work in the country for two years. This is not the same as lawful status, and the program has never provided a pathway to citizenship. DACA recipients, often called “Dreamers,” must provide proof they: were younger than 31 as of June 15, 2012; were younger than 16 when they came to the U.S.; have lived in the U.S. since June 2007; are in school, have graduated from high school or the equivalent, or are an honorably discharged veteran; and that they have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors.
On Sept. 5, 2017, the Department of Homeland Security announced that new DACA requests would no longer be accepted, and that renewal requests made after Oct. 5 would not be granted. Two federal rulings partly reversed that order in early 2018, allowing those who had already received DACA status to continue submitting renewal applications. Several lawsuits are still moving through the federal courts over whether the Trump administration can completely terminate the program. For now, U.S. Citizenship and Immigration Services is still accepting renewals.
Refugees and asylum seekers:
Refugees apply from overseas, and must have their paperwork approved before entering the country. Asylum seekers apply from within the U.S., or at a port of entry. They both must prove a “well-founded fear of persecution” in their country of nationality on the basis of race, religion, nationality or social group. The president decides on the maximum number of refugees the U.S. will accept each year. For fiscal year 2019, Trump set the cap at 30,000, the lowest number since presidents began setting yearly limits in 1980. There is no official cap on the number of people who can be granted asylum in a single year. However, the Trump administration has called for sweeping changes to the way asylum applications are processed in response to what Trump declared a “national emergency” at the border — an increased number of families fleeing violence and poverty in Central American countries and overwhelming national infrastructure. A presidential memo issued April 30 calls for charging asylum applicants fees, speeding up the processing of claims, and barring certain applicants from receiving work permits. According to the memo, 100,000 people arrived at the border seeking asylum in the month of March alone. Ultimately, only about 12 in 100 people who request asylum end up receiving it, but that process can take months in the backlogged immigration courts.

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