Relief for spouses of Indian H-1B visa holders, but it may be short lived

india

Updated: Nov 09, 2019 14:15 IST

A US appeals court on Friday refused to strike down an Obama-era rule that grants work authorization to spouses of H-1B visa holders waiting for their Green Card, bringing some relief to an estimated 100,000 Indian families, its chief beneficiaries.

But only temporarily. The Trump administration has long wanted to rescind the rule, and could start the process as early as next spring.

A bench of the Washington DC circuit court of appeals sent the case back to a lower court for it to determine its merits saying the case “will be mooted by the Department’s (department of homeland security, which oversees immigration) promised rescission of the rule”.

Until then, these families will continue to benefit from the rule — H-4 Employment Authorization Document (H-4 EAD) — introduced by President Barack Obama’s administration in 2015 as an incentive for H-1B holders cleared for Green Card, mostly Indians. Because of a country-cap on the number of Green Cards that can be granted to people from any one country every year, the backlog for Indians has grown, with wait times now estimated to be upwards of 100 years.

The chief beneficiaries of the rule have been spouses of H-1B visa holders from India — 93% of the 126,853 H-4 applications approved till December 2017, according to a study by the Congressional Research Service, a non-partisan provider of data and analysis to US congress, based on official numbers.

The DC court of appeals bench sided, however, with the petitioner, Save Jobs USA, that the H-1B visa programme, with the attendant H-4EAD rule, created competition for American workers from foreigners, a key argument put forward by the Trump administration to explain and justify its withering scrutiny of the H-B visa programme, in line with the president’s overarching call to “Buy American, Hire American”.

Save Jobs USA describes itself as an organization founded by US-born workers displaced by H-1B workers. Its case against the H-4EAD rule was dismissed by a DC district court in 2016 after the Obama administration argued it lacked “standing”, cause to claim to be an aggrieved party, in other words.

Save Jobs appealed, which caused the Friday verdict.

Immigration Voice, an advocacy group that intervened in the case as an impacted party, said in an internal note to its members, “As the outcome of the court decision, we are able to continue to have H-4EAD rule in effect.”

Immigration Voice is also spearheading a legislative move to fix the underlying problem, to remove the country-cap that has led to the burgeoning backlog of Indians waiting for their Green Cards.

A legislation supported by Immigration Voice cleared the House of Representatives recently and it is now before the Senate, where one Democratic senator, Richard Durbin, is standing in the way.