Spouses of H-1B Visa Holders Could Soon Lose the Right to Work in the U.S.

Any day now, federal immigration officials are expected to officially propose that spouses of H-1B visa holders no longer be allowed to work in the U.S. Roughly 105,000 families are expected to be affected, most of them from India, many of them right here in Silicon Valley.

Take Leena Bhai. Her family of four rents a spacious but modest home in Sunnyvale. Her husband is a product manager with Google. "I came here following my husband. He had an opportunity he wanted to pursue. So I came here as his wife, and now I'm dependent on him," Bhai explained.

The word “dependent” rolls uneasily off Bhai’s tongue. Originally from Mumbai, she got her bachelor's degree in computer engineering from Mumbai University. "I have also an MBA from the Indian School of Business. It's an amazing school, and I have an amazing education. I would love to use that, if possible, here."

Bhai is allowed to work for now, thanks to a rule change that went into effect just three years ago, around the time she arrived in the U.S. She’s an H-4 EAD visa holder, the spouse of an H-1B visa holder, which means her husband's petition for permanent residence, or green card, has already been approved.

Bhai works for AnitaB.org, a Palo Alto-based nonprofit that helps recruit, retain and advance women in technology. "I use my H-4 EAD for the betterment of the community. If that's taken away from me, it's a little bit of a loss to those women, too. Right?"

Bhai and others like her -- mostly women, it must be said -- are worried the Department of Homeland Security and U.S. Citizenship and Immigration Services are poised to do an about-face on H-4 EAD.

In April 2017, President Trump signed an executive order to review the H-1B visa process as part of his "Buy American, Hire American" initiative.

In a rare public conversation last August at the National Press Club, USCIS Director Francis Cissna argued Congress never explicitly gave H-1B visa spouses the right to work. "That is an important reason why we should propose rescinding it," Cissna said.

His argument mirrors the one from a group of IT workers called "Save Jobs USA." The organization sued Homeland Security in 2015 over this issue, claiming the DHS is sidestepping protections for U.S. workers built into the H-1B program, specifically a limit on the number of H-1B visas that can be issued each fiscal year. Under the Obama administration, DHS maintained it had broad authority to interpret immigration law. But under the Trump administration, DHS told the appeals court it changed its mind.

Congresswoman Zoe Lofgren of San Jose is one of 132 members of Congress who signed a letter urging Homeland Security to reconsider.

She said the nation is long overdue for a broad reform of U.S. immigration law that takes into account, among other things, the needs of Silicon Valley.

"I have a bill to do that. There are other bills that have been introduced. None of them are moving. The Republicans control every branch of government right now and they can't do anything," Lofgren said.

A 1965 law established that no individual country can constitute more than 7 percent of green cards issued in a year. The Immigration Act of 1990 caps the total number of new employment-based green cards at 140,000 a year.

But no other country sends as many highly educated green card applicants to the U.S. as India. Indians who applied in 2009 are just getting their green cards now, and the backlog is growing. Some Indians who qualify are waiting as long as 25 years to move through that queue. "The wait for us is nearly exponential," Bhai said.

Bhai's daughter is 7 years old. Her son is 4. She wonders what will happen when they get old enough to apply to college and require more financial support than her husband can manage now. What happens when they turn 21, old enough to require green cards of their own?

Leaving aside her concerns as a mother, what happens if Bhai is forced to sit out during her most productive professional years? "H-4 women face a triple burden if they are able to start working again, particularly in technology: race, gender and long gaps in their resumes," writes associate professor Amy Bhatt at the University of Maryland, Baltimore County, author of "High-Tech Housewives: Indian IT Workers, Gendered Labor, and Transmigration."

"These are approved immigrants waiting for their number to come up. These intending immigrants are supposed to sit on their hands and do nothing, even though they also have Ph.D.s?" Rep. Lofgren said.

Lofgren added that  highly skilled immigrants don’t have to work here. "They're getting poached by Canada, because they also feel that based on the president's behavior, his comments, and some new hostility from the Immigration Service itself, that they're not wanted here. You know, we're not the only game in town."

Countries like Australia, China, Germany and Israel are also reaching out to frustrated Indians who don't want to wait.

That said, the Trump administration does not appear to be rushing this particular rule change through. The Department of Homeland Security has pushed its decision-making timeline several times over the last year.

Leslie Dellon, staff attorney with the pro-immigration nonprofit American Immigration Council, said that a notice of proposed rule-making requires a review by the Office of Management and Budget first, as well as a public comment period. "We're probably looking at 2019 before there's going to be any action taken."

Leena Bhai can keep working, at least until the new year. Presuming she wants to stay.