The Trump Administration is moving forward with plans to rescind a rule that allows the spouses of H-1B visa holders to work in the U.S. On February 22, 2019, the Department of Homeland Security (“DHS”) sent a proposed rule, titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” to the White House for review. It is unclear how long it could be before the proposed rule may become final and take effect, though that process may take several months, including a public comment period that would begin after the White House approves the changed rule and it is published in the Federal Register. The proposed change would reverse a rule put in place by the Obama Administration in 2015 that allows H-4 visa holders to receive work authorizations if they are the spouse of an H-1B visa holder who is in the process of obtaining employment-based lawful permanent resident (“LPR”) status. Should the proposed rule take effect, those H-4 visa holders would immediately lose their right to work in the U.S., which may make it less financially feasible for H-1B visa holders to remain in the country, or for potential H-1B visa holders to come to the country. The proposed change would not prevent H-4 visa holders who are spouses and children under the age of 21 of H1-B visa holders from living in the U.S.
The Obama Administration adopted the rule allowing the spouses of H-1B visa holders to work in part to ease the financial burdens on their families and to help businesses attract highly skilled workers through the H-1B program. Since that rule took effect, according to DHS, nearly 91,000 H-4 visa holders have received initial approval for work authorizations. According to the Congressional Research Service, more than 90 percent of the H-4 visa holders who received work authorizations are from India, while about 5 percent are from China; more than 90 percent of those who received work authorizations are women. About 40 percent of the H-4 visa holders who received work authorizations live in California, New Jersey, or Texas, and are largely located in the high-tech corridors of Silicon Valley, northern New Jersey, and several cities in Texas. The reconsideration of the rule stems from President Trump’s 2017 executive order titled “Buy American and Hire American,” which aimed in part to “create higher wages and employment rates for workers in the United States” and “supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system.” According to DHS, the proposed rule to end work authorizations for H-4 visa holders would benefit some U.S. workers because they would have “a better chance at obtaining jobs that some of the population of the H-4 workers currently hold.”
The Trump Administration has demonstrated increased scrutiny related to H-1B visas in other areas as well. According to data released by DHS on February 22, 2019, the percentage of H-1B applications for which DHS has sought additional information has increased dramatically, occurring in 60 percent of applications during Q4 2018, as compared with less than 30 percent during Q4 2016, the final quarter of the Obama Administration. At the same time, the approval rate for applications involving a request for evidence has decreased; just over 60 percent of such applications were approved during Q4 2018, as compared with nearly 80 percent during Q4 2016.