If history is a guide, Donald Trump’s second-term immigration policy could mean misery for the spouses of H-1B visa holders. The Trump administration may try to remove work authorization for H-1B spouses or encumber spouses with long processing delays. Trump officials could also attempt to block the entry of H-1B visa holders and their spouses and make gaining approval to remain in H-1B status more difficult. A new Trump administration’s policies could affect those waiting years for employment-based green cards and impede America’s ability to attract and retain talented scientists and engineers.
Ending Work Authorization For The Spouses Of H-1B Visa Holders
In 2015, the Obama administration issued a rule to allow the spouses of H-1B visa holders to work in the United States. Under the regulation, if an H-1B professional has an approved immigrant petition (I-140), part of the employment-based green card process, a spouse in H-4 dependent status is eligible for an employment authorization document, also known as an EAD. The rule also applies if the H-1B visa holder has waited a year since filing an I-140 petition or permanent labor certification and is extending H-1B status beyond six years.
According to a 2022 National Foundation for American Policy analysis by University of North Florida economics professor Madeline Zavodny, almost 90% of the spouses of H-1B professionals have at least a bachelor’s degree, and over half have a graduate degree.
In 2018, the Trump administration announced its intention to eliminate the rule that allows the spouses of H-1B visa holders to work. “With regard to regulations, our plans include proposing regulatory changes to remove H-4 dependent spouses from the class of aliens eligible for employment authorization, thereby reversing the 2015 final rule that granted such eligibility,” according to a letter on April 4, 2018, from USCIS Director Francis Cissna to Sen. Charles Grassley (R-IA). (Emphasis added.)
The item remained on its regulatory agenda, but the Trump administration did not remove the 2015 rule that allowed H-4 dependent spouses to work. Trump officials may have run out of time, given their full immigration agenda. If Donald Trump wins in November, his immigration team would have plenty of time to launch an effort to remove the ability of H-4 dependent spouses to work.
Making Life Miserable For H-4 Spouses Via Administrative Burdens
Even without removing the 2015 rule, the Trump administration harmed H-1B visa holders by making processing more difficult for H-4 spouses. Jonathan Wasden of Wasden Law says Trump officials interfered with processing benefits applications to achieve their objectives.
“By adding redundant and unnecessary steps and processes, they were able to bring H-4 and L-2 EAD adjudications to a halt,” said Wasden. “A process that the agency [U.S. Citizenship and Immigration Services] claims takes only 12 minutes to complete ended up taking over a year. A second Trump administration will likely use similar illegal means to achieve their desired policy ends.” (L-2 visas are for dependents of intracompany transferees.) The Biden administration’s temporary final rule on automatic extensions of employment authorization documents could provide protection for visa holders, although the time periods covered by the rule may limit its reach.
Lawsuits alleged that Trump officials added procedures to prevent H-1B spouses from working in the United States, particularly by compelling H-4 dependent spouses to obtain new biometrics, including fingerprints. “The agency created the requirement for new biometrics with the intent of damaging H-4 EAD applicants’ ability to maintain employment authorization and their jobs,” according to a lawsuit. After the new policies, USCIS took one to two years to process applications for work authorization. The legal settlement with the Department of Homeland Security in Edakunni v. Mayorkas helped many spouses of H-1B and L-1 visa holders.
Under the settlement, USCIS agreed to return to “bundling the adjudication of I-539s and I-765s for H-4 and L-2 derivatives along with the underlying I-129 when these forms are filed together,” according to a statement from Wasden and Steven Brown from Reddy & Neumann, P.C. Also involved in the settlement was Jesse Bless on behalf of the American Immigration Lawyers Association and Kripa Upadhyay of Karr Tuttle Campbell. (Form I-539 is for applications to extend/change nonimmigrant (temporary) status, and Form I-765 is for applications for employment authorization.)
In the lawsuit, more than 40 companies and organizations filed an amicus brief supporting employment authorization for the spouses of H-1B and L-1 visa holders, including Amazon, Apple, Business Roundtable, U.S. Chamber of Commerce, Cisco Systems, FWD.us, Google, Intel, Microsoft and others.
Blocking The Entry Of H-1B Visa Holders
During the Covid-19 pandemic, Donald Trump used 212(f) authority to deny the entry of family and employment-based immigrants and high-skilled professionals on H-1B and L-1 visas. “Think about the first term, but on steroids,” said a former senior Trump administration official drafting immigration plans for a second term, according to CNN.
If the Trump administration blocked the entry of H-1B visa holders, it would stop new H-1B professionals and their families from coming to America to work and could prevent individuals with H-1B status from reentering the United States, depending on the presidential proclamation and a person’s circumstances. International students who change to H-1B status inside the United States would be unaffected but could encounter problems if they departed and attempted to reenter.
New H-1B Visa Rules And Higher Wage Requirements
More restrictive visa rules could affect H-1B professionals and their spouses, especially those waiting for employment-based green cards, for a simple reason: H-1B visa holders denied an extension will likely need to depart the United States. After Donald Trump became president, denial rates for H-1B petitions for continuing employment (typically extensions of current visa holders) increased from the typical 3% range to 12% in FY 2018 and FY 2019. Denials forced many H-1B professionals to leave America. By FY 2021, denial rates fell to 2% after a legal settlement in 2020 forced USCIS to stop several of the Trump administration’s practices.
Reviving a Trump administration rule designed to price H-1B visa holders and employment-based immigrants out of the U.S. labor market represents another way a second Trump term could inflict damage on high-skilled foreign nationals. An NFAP analysis found that under the 2020 rule, employers were required to pay all software developers $208,000 a year, regardless of skill level, in many U.S. cities, including Battle Creek, Michigan and Reno, Nevada.
If an employer cannot afford to pay high-skilled foreign nationals because of government-imposed wage mandates, many talented people would be forced to leave the United States. That was the rule’s goal. The rule also applied to PERM applications, which are needed for most employment-based green cards.
The Trump administration made the wage rule more vulnerable to legal challenges by publishing the Department of Labor rule as “interim final,” which meant the rule went into effect without the usual public comment period under the Administrative Procedure Act. On December 1, 2020, U.S. District Judge Jeffrey S. White, in a written order, vacated and set aside the DOL wage rule. That does not mean a judge would block a new version of the rule in a second Trump term.
“In its first term, the Trump administration had the overall policy goal of making the United States an undesirable location for H-1B professionals, including by depriving spouses of the ability to work,” said Jonathan Wasden. A second Trump administration will likely see new policy efforts that put employers, H-1B visa holders and H-4 spouses on the defensive.
