Some spouses of foreign workers on the controversial H-1B visa may lose their work permits after the Trump administration changed employment rules.
The U.S. Department of Homeland Security on Oct. 30 stripped holders of the H-4 spousal visa — thousands of whom are estimated to live and work in the Bay Area — of the ability to receive automatic extensions for their work permits when their renewal applications have been submitted but not fully processed by immigration authorities.
Previously, foreign citizens on the H-4 and certain other visas could have their work permits automatically extended by 540 days if their permit applications were submitted on time but expired while still being processed.
U.S. Citizenship and Immigration Services director Joseph Edlow, announcing the rule change, said his agency was placing renewed emphasis on “screening and vetting” foreign citizens, “eliminating policies the former administration implemented that prioritized aliens’ convenience ahead of Americans’ safety and security.”
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The agency, which handles employment authorization renewals, said its current processing time is four months in 80% of cases. But immigration experts said the agency will likely take longer than that in certain cases. And because visa holders can only apply for work permits a maximum of six months in advance, some H-4 holders may not get their permits re-approved before they expire. Foreign workers must immediately stop working if their employment authorizations lapse.
U.S. Citizenship and Immigration Services said Friday that gaps in employment could result if visa holders don’t file work permit applications in time, or if the agency can’t process their applications before permits expire.
“It doesn’t really make sense to me,” said Kelli Duehning, a partner in the BAL immigration law firm’s San Francisco office who spent 17 years as a lawyer for U.S. Citizenship and Immigration Services.
“Do whatever screening you need. But then don’t penalize the person who is here on a valid status that you granted them and then not allow them to work because the administration is taking more time to do that vetting.”
Kalpana Peddibhotla, executive director of the San Jose-based South Asian American Justice Collaborative, said the change for now may affect only a “narrow set” of H-4 holders, but “processing times will likely go up.”
Peddibhotla noted that H-4 holders have already gone through extensive security checks to be allowed into the U.S.
Vetting and screening will probably include checks for any criminal activity, and probing of applicant’s social media for sentiments viewed by the administration of President Donald Trump as “anti-American” under one of the president’s executive memoranda, Duehning said. She said she would not be surprised if that screening led to denials of work permits.
The additional investigation will probably add to processing times for H-4 work permits, Duehning said.
Citizenship and Immigration did not immediately respond to questions about the screening and vetting.
About 90,000 foreign citizens live in the U.S. under the H-4 visa, which is granted to wives and husbands of H-1B workers on track for a green card. The vast majority of H-4 holders are women from India. Since 2015, they’ve been allowed to work if their spouses on the H-1B — a visa heavily used by the Silicon Valley technology industry to obtain top talent along with lower-paid employees — are on track for a green card.
Losing work authorization can cost a foreign worker their job, and make it harder to find other employment in the future, Peddibhotla said. Taking away automatic renewal also dissuades employers from offering jobs to H-4 holders out of concerns about potential employment gaps, Peddibhotla added.
People on the H-4 have long faced uncertainty over their ability to take and keep jobs. Two months after they received the right to work under former President Barack Obama in 2015, a group of tech workers sued the federal government, claiming the employment authorization illegally and unfairly forced them to compete for jobs against non-citizens.
While President Donald Trump was campaigning for his first term in the White House, he attacked the H-1B and claimed an “influx of foreign workers” was hurting working-class Americans. In the first year in office, his administration pledged to end the H-4 employment authorization, sparking a lobbying blitz by the tech industry, which highlighted companies’ reliance on H-1B workers and argued that allowing H-1B spouses to work was crucial for attracting and retaining foreign talent. The work ban never came.
In Trump’s second term, the H-1B shot to its highest-ever profile in America’s debate over immigration and foreign workers, after a right-wing conspiracy theorist attacked employment of Indian tech workers in the U.S. The ensuing vitriolic debate exposed a schism among Trump supporters, pitting advocates for the tech sector and Silicon Valley against anti-immigration hardliners.
In October, the U.S. Supreme Court declined to hear an appeal of the tech workers’ H-4 case, effectively ending it.
Duehning recalled that processing backlogs for H-4 visas and work permits in 2019 and 2020 caused substantial upheaval in the Bay Area.
“The impact is more prevalent here in the Bay Area because of the large volumes of H-4 holders that we have here, and also because of the cost of living,” Duehning said. “It is very difficult when you have only one working adult in the household. It really puts a lot of these families in a really bad spot.”
If H-4 work permit processing times increase past six months, Duehning said, “I think we will start seeing a lot of concern. It will really put a lot of families here in a position of ‘Hey, can we even afford to be here?’”
