Work Permits For Highly Skilled Workers' Spouses Upheld

An Obama-era policy that granted employment authorization for spouses of highly skilled foreign workers remains active. A federal judge determined that the policy allowing spouses of H-1B visa holders to be eligible for an H-4 visa and work permits is not arbitrary and capricious, as argued by an organization of U.S. tech workers.

The Department of Homeland Security (DHS) previously offered work permits for a group of H-4 visa workers in order to keep their spouses, H-1B visa holders, working in the U.S. DHS determined that the retention of H-1B workers is sufficient justification to allow their partners access to the U.S. employment market. Further, DHS found that even if all spouses of all H-1B workers were to pursue the option, it is a negligible number. In fact, it is less than 0.12% of the U.S. workforce.

The H-4 rule does not increase the number of individuals in the U.S. labor market. Rather, the update gives qualifying individuals earlier access to employment authorization, per the judge.

The Obama administration gave H-4 spouses of H-1B visa holders who have a pending green card application the option to work in the U.S. while the request is processed. Individuals from countries with long wait lists, like China and India, may have to wait decades before a green card is available from those countries. The policy, originating in 2015, quickly became the subject of legal action. Opponents claimed that U.S. citizens lost their jobs to temporary visa-holders and that Congress did not authorize the H-4 work permits.

The federal judge disagreed. The judge stated that DHS is authorized by Congress to establish the time and conditions required for visa-holders while in the U.S., including what spouses may be eligible for during their time in the country while accompanying spouses under nonimmigrant visas. Further, the judge found that similar policies are in effect for spouses of qualifying international students and foreign government officials. Other circuit court opinions found similar authorizations that allow foreign science, technology, engineering, and math (STEM) graduates to work in the U.S. while under student visas.

If you have questions about the H-4 visa or employment-related immigration issues, contact us at ILBSG. We actively monitor ongoing updates to policy to ensure our clients get the right advice.