Agony for H4 visa holders, as Obama’s executive action delays work permits

President promises a lot, but question is when will it happen?

By Sujeet Rajan

Sujeet-sidebar 150x150NEW YORK: For all the grand rhetoric by President Barack Obama over the last two days, with a speech from the White House last night and today in Nevada, on executive action for immigration reforms, one thing is amply clear: there is no deadline to actually make these promises into law. It’s anybody’s guess as to when these executive measures may actually be implemented.

In a press release last night to complement the president’s address, the White House made it clear that executive action may take ‘several months’ to implement. Reports say that the president will travel to several parts of the country to argue his reasoning.

That release from the White House included a fact sheet, pointers to what the president has in mind; what the Department of Homeland Security (DHS) will work on. Importantly, there are no dates, deadlines for implementation.

Instead, the president seems to have thrown the gauntlet at the Republicans, going by his speeches, to come up with a bill in Congress to follow through with the outline of the plan he has drawn for immigration reforms. And it’s clear that if Congress comes up with a bill, he is willing to even have the executive actions to be superseded by that bill.

So, this may be the first time in the history of the US that a president after announcing such a broad executive action, may actually rescind it in favor of a bill passed by Congress, or let it be superseded. Usually, executive action follows after a bill has been passed, to implement the provisions of the bill, or is taken as a unilateral measure to change laws or create new ones.

For the record, the fact sheet issued by the White House Thursday night says that Obama has directed the DHS to provide portable work authorization for high-skilled workers awaiting LPR (Legal Permanent Resident) status and new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.

Here’s what the White House said in that release:

On relief for H-1B workers and work permits for some H4 visa holders: “Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses.  Under the current system, employees with approved LPR applications often wait many years for their visa to become available.  DHS will make regulatory changes to allow these workers to move or change jobs more easily.  DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.”

Here are some other pointers the release laid out:

On foreign entrepreneurs: “Enhancing options for foreign entrepreneurs.  DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.  The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act.”

On students on F-1 visas: “Strengthening and extending on-the-job training for STEM graduates of U.S universities. In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.”

On L-1 visas: “Streamlining the process for foreign workers and their employers, while protecting American workers. DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.”

On family reunification: “Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.”

On advanced parole, to travel while awaiting a Green Card: “Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”).

Couched in language that has more obfuscation that transparency – since executive orders are meant to be firm decisions that is well thought out and considered a done deal, to be implemented within a few days, if not with immediate effect – these directives  disappointingly have little to offer by anything new, as the preliminary hearings for giving work permits to H4 visa holders took place months ago. Going by the time-frame for the process to be completed, the permits should have been issued by now.

Obama’s speech technically means that instead of getting work permits by now, which they have been anxiously waiting for with bated breath, begin a new life, these H4 visa holders now again have an interminable wait, with a shake of the head and sigh at the stars.

It’s likely that if Congress were to start work on a comprehensive immigration reform bill, those H4 visa holders who were in line for a work permit, would then have to wait for the bill to go through, or for the bill to not go through alternately, upon which the president would finally put ink to paper and make his executive action reality. Question is, when?

Similarly, the plight of H-1B workers have been discussed at great length, at immigration forums, and congressional hearings. It’s frankly a case of the administration turning away from a festering problem that is ruining lives of many highly skilled workers, and their families. It’s a problem that can be fixed later today, if the President wish to. What is the need to wait for an unknown number of months?

As for the apparent generosity being shown by the president through proposed executive action to students on F-1 visas, especially those in STEM streams, it’s a cruel reminder of what partisan politics and lobbying really mean. Only recently, the State Department had announced (with immediate effect, mind you), that students from China would get 5-year visas as long as they stay in a program, and also given leniency to travel back and forth overseas.

The question is, if that decision on Chinese students could have been taken without an executive action, then why can’t simple measures like extending OPT to students and travel privileges for parolees be not done similarly, instead of hitching it to procedure which may take months to accomplish, if ever?

As for the upcoming strictures against L-1 visas, the State Department has unearthed enough cases of fraud and deceit by petitioners and even employers for several years now, to finally take a call on it. But again, by looking the other way as they wait months for this to be done, makes no sense.

Of course, one thing Obama clarified in detail was that illegal immigrants who have been here since the last five years or more and have children who are US citizens or permanent residents will get work permits.

Obama has for sure scored over the Republicans on the immigration front. Even if the Republican-majority Congress and Senate come up with a great bill, the credit will go to Obama. And if they don’t come up with it, he has ensured the Democrats of support of Hispanic voters. Amnesty to almost 5 million illegal immigrants does have its perks.

For all practical purposes, as it stands today, Obama’s executive action is meant to target illegal immigrants, help them. Measures for legal immigrants, it seems, is an afterthought, with little finesse to it.

(Sujeet Rajan is the Editor-in-Chief of The American Bazaar)  

5 Comments

  1. The H4 visa does NOT entitle the holders the right to work in the US. If they want to work, they should do so by legal means, namely get an H-1B visa.

    • ollieallears

      Many H-4 visa holders who have exellent education, skills, experience, are not-eligible for a work permit. USCIS has a list of jobs that one can get a work permit for. If your area of expertise is not on that list, you can NOT get an H-1B visa. And you cannot ‘switch’ yoru area of expertise.

      I have the equivalent of three bachelors degrees. At home I had good jobsand also my own small business. But for my work a bachelors degree is not ‘a condition sine qua non’ according to USCIS.
      This happens mostly to ‘older’ types of jobs that people in the past could get into without advanced education. That has changed, as the world has changed – but apparently not as far as USCIS is concerned.

      After eight years of forced unemployment I was ‘damaged material’. No US employer would hire me, but also no employer back home.
      So I lost it all – my ability to work, my ability to earn money, my self esteem. That is a very harsh penalty.
      If there are problems with the abuse/misuse of (all !) non-immigrant work-related visas – and yes there are ! – address that, cancel the current system, and replace it with a better one. But to not take it out on us – as is now happening.

      The rule as now ‘proposed’ by Mr. Obama, is already in place for several years. How come nobody pioints that out ?!
      It is also no solution because the wait for the EAD is too long. (See my story above.) This only benefits a very small group – that already had to wait for just a short while: wives of EB-1 petitioners.
      But this disinformation helps to split the front of H-4’s.

      When will the US become the country of opportunity for us too ?

  2. It is unfortunate that the right to work is denied to H1 spouses, which is against the principle of natural justice. This long awaited reform has now come up to implementation and hope this will not be scuttled by the opposition, to settle scores.

    • ollieallears

      This ‘new rule’ was already on the USCIS books for many years. It means NOTHING and certainly is not an improvement for the majority of H-4 visa holders.

  3. So true! Excellent article. Obama’s action is more political rhetoric than actual actual reform. It seems that legal immigrants who follow the law are made to look like fools. Obama goes to great length to explain how illegals will be accommodated and how compassionate he is about those who have broken the law. Where is the compassion for the legal immigrants who have waited for 15-20 yrs. for LPR. Those skilled immigrants who have worked hard, contributed to the US economy, paid the official fees and all the taxes, and still waiting patiently for a clear policy guideline.

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