H4 visa holders can start a business after getting EAD: Sheela Murthy

Interview with noted immigration attorney Sheela Murthy of Murthy Law Firm.

By Raif Karerat

WASHINGTON, DC: When Sheela Murthy started her law firm ‘Murthy Law Firm’ in 1994, she sought to establish a new kind of institution, one where immigration representation was married to humanitarian commitment.

With Murthy at the helm, the firm has grown from a modest solo practice to being an international leader in the field of immigration law, with domestic offices in the Washington DC-Metro area and Seattle, plus Indian affiliates in Chennai and Hyderabad.

Murthy is also co- founder of the MurthyNAYAK Foundation, an independent, nonprofit, NGO established to identify and support a range of humanitarian projects in India and the United States, including children’s and women’s health issues, education, support structures for immigrants, and disaster relief efforts.

In a phone interview with the American Bazaar, Murthy discussed the current state of immigration in the United States, the recent reforms, and how they pertain to H-4 and H1-B holders in particular. Excerpts from the interview:

Why were H-4 visa holders denied the right to employment for so many decades?

There is a fear even that H1-Bs are coming and taking away jobs from Americans. So to give employment to H4s, who are the spouses of H1-B holders, is sacrilegious — it’s blasphemy and should not be permitted. People are against opening the doors to H4s, who have been denied the right to employment for decades or longer, because they are just family members of H1-B holders who have quotas placed upon them by the Department of Labor [and are more regulated].

I wouldn’t say I’ve often heard such a stance described as xenophobic, do you believe that may be an apt description?

It very well could be. I think the underlying reason very well could be that it’s an issue of race and culture. Historically, every generation of immigrants that has come to the U.S. has felt that they were discriminated against. Whether it was the Italian Americans or the Chinese or Japanese Americans, or Greek Americans — with them I don’t know if it’s about race or if it’s, “Hey, we went through a rough patch, so how dare you show up and get the red carpet rolled out for you?” I think there’s more of that than anything else.

By the way, this generation of immigrants — particularly from India — is the richest in American history. Most of them are highly educated and qualified and according to the World Bank’s statistics the average Indian is five times richer than the average American in America — all races blended together. And this is the first generation of immigrants that is so well-to-do because they are coming in not as dock workers or blue-collar workers but primarily as white-collar workers whether it’s within the technology industry, doctors, etcetera. I think there might also be a level of envy and anger.

When the H-4 visa holders apply for work permits, what are some of the stipulations they must be wary of? Is everybody who applies for the work permit going to get it?

Well, there is a legal criteria. Not every H-4 visa holder is eligible for the work permit. Only a very narrow, limited group of H-4s are permitted to apply for the EAD card, or the Employment Authorization Document. You’d need an I-140 petition for approval or the principal H1-B holder would have to have been in the U.S. for over six years on H1-B status. Will people who apply get it? I’ll assume if they qualify under those two criteria and continue to remain the spouse of an H1-B — and it’s only the spouse, not children or anyone else — and pay the correct fee, then they should get it.

Besides what you previously mentioned, are there other documents that an H-4 holder would need to apply for an EAD card?

Well, besides what I mentioned, you’d be surprised how many people fail to make sure the documents are properly filed. Sometimes they write the wrong check amount, or sign it wrong, or what have you.

So a lot of it comes down to avoiding human error?

Correct. Sometimes they fill it out without due diligence dotting and crossing everything, and then they find out three months later their application wasn’t approved. So then, you’ve lost three months without employment, which is way more expensive than paying $200 or $300 to a lawyer to have them help you fill out the application.

Are H4 visa holders now eligible for social security numbers? Is this EAD card going to be any different from the traditional EAD card that is currently issued?

Once an H-4 holder gets their EAD card they will be eligible for a social security number. And based on everything the government has told us so far, it’s not supposed to be any different than the EAD cards that are currently being issued. What we don’t know is whether they’ll give it for one year’s worth of time, two, or three years.

Once they get an EAD card, can H-4 holders start businesses of their own? Can their spouse, who is yet to receive a Green Card, also be made a partner of that business?

The H-4 can certainly start a business. They can do anything they want. As a business owner myself, I think it may not be very wise to put your house on the line, etcetera if you and your spouse both don’t have green cards. If have to leave the country unexpectedly on 30 days’ notice due to your spouse’s H1-B contract not being extended for any reason, you could lose everything.

The spouse of an H-4 wouldn’t be able to become an active partner in the business because it is a violation of H1-B status to work for any other employer except the employer from whom you have an H1-B petition.

On what scale does the amendment affect the South Asian American community, specifically?

Indians are the number one users of H1-B visas in the world. If Indians are the maximum H1-B users in the world, then presumably H-4s from India will also be at the maximum. Indian Americans will probably be benefitting the most in the world from these H-4 benefits.

Is there any data available pertaining to how many South Asians, or Indians specifically, are going to benefit?

Applications aren’t filled out based on race, so the government hasn’t released anything about that. We know that the U.S. Department of Labor — and we’ve written a few articles about this at Murthy.com — has stated which countries applicants are from, but they only know about applications submitted in connection with an H1-B petition, so that may sort of give you an idea. But there’s an idea about the correlation but it’s not 100 percent guaranteed regarding how many people are going to benefit.

We touched on this earlier, that hardliners are sure to argue that immigrants are now further enabled to displace “American” employees in the workforce. Do you believe that has ever been a viable argument?

I think maybe in a time when there was very high unemployment. With the economy just sort of coming out of it more or less at this point, it’s in a very good place, is there validity? There’s always going to be some level of frustration, of anger, of feeling ripped off, and some are bound to wonder if the U.S. Department of Labor and Department of Homeland Security are taking care of its own citizens — if they actually give a damn about us. I think in an economy where there was high unemployment, like that which existed until a couple of years ago, it would have exacerbated fears and feelings of anger and angst against immigrants if we didn’t wait until unemployment was below 5.5 percent nationally. Economists have routinely said anything below 6 percent is actually representative of zero, because the 5.5 percent includes a lot of people who are just pretending to search for a job. I’m not an economist, but apparently they say anything below 6 is effectively zero unemployment.

Is the DHS ready to handle the overload from the H-4 applications for EAD cards? There have been many complaints surfacing of EAD cards not being issued within the mandatory 90 days. Will the DHS hire new personnel to accommodate the massive spike in applications?

I can understand why people are upset because you’re absolutely right, at the moment they’re taking approximately 120 days or four months to issue an EAD and this is before the huge onslaught that is expected. That’s why they purposefully waited to start it. They could have started it immediately, because they’d love to get the extra money and everything else, but it’s H1-B cap season and they’re expecting approximately about a 150 to 200 thousand H1-B petitions to be filed. H1-Bs are subject to the quota on April 1, so I think they made sure the EAD rule would only be effective May 26 in order to give them more time to deal with the onslaught of H1-B petitions.

Do we expect anything to be approved in 90 days? Well, the regulation says so, but I already tell people at the end of the day am I going to go to a different federal government or a different agency to get my EAD card? I have no choice, that’s the disadvantage. It’s not a free market capitalist economy where I can say, “Okay, Sheela Murthy didn’t do a great job, so let me go to another immigration lawyer down the road.” That’s not a choice. We can sue them, and win, but the problem is most people don’t want to sue because of the time and money it takes to sue the government. Applicants have limited resources while the government has plenty of time and money that’s paid for by your and my taxes.

I realize that online application initiatives by the government haven’t always gone smoothly, as with healthcare in the past, but couldn’t the EAD process be completed via online portal in order to potentially streamline it?

Believe it or not there is an online EAD application. But once you fill that out online, they want the check, and forms, and documents along with anything else mailed to them. To me, that’s like the kiss of death, because they have these forms online but it’s so much worse and more complicated, not only do we not use it, we don’t recommend our clients use them. I would not feel comfortable jeopardizing my clients’ livelihoods.

Wow, that is astounding to me.

It is astounding. Especially when they can accept online credit card payments since they don’t want to lose millions of dollars. It’s just ridiculous. They charge outrageous fees for a process that I don’t think should take more than a few minutes. The fees are so high, and they keeps growing, and growing, and growing, and growing while the body of service doesn’t grow. If any of us in private business did it like that, we would have been shut down long ago.

How do you compare the immigration to Canada compared to the U.S. at present? Would Canada be a better option even if the U.S. were to overhaul some of the current laws, including on EB2 and EB3 visa?

I’m not really an expert on Canadian immigration — I need to say that up front. I know just enough to know their system is based off a different formula in the sense that they have a point-based system based off your education and age. So if you have a Master’s Degree and you’re below 35, for example, you get extra brownie points.

American immigration is the world’s most complex immigration system in the world. The complexity and the layers of it all! We are the point of destination for people all over the world, whether you’re from Europe, or Asia, or Africa, or any other part of the world for that matter. The U.S. is still the number one destination in the world.

Everyone I know who applies for both countries says, “If I get both, I’m going to America, not Canada. And I know so many people who spend 10 to 15 thousand dollars doing it with a lawyer in Canada and then end up saying, “Well, if I get the U.S., why stay in Canada?” It’s colder, the salaries are less, the taxes are more, and you have health coverage but I hear it’s supposed to be crappy. But like I said, I’m not an expert on Canadian immigration laws.

Do you reckon the H-1B visas would be expanded this year, the cap raised?

We’ve been going over this debate for years. When H1-B was set up, it was pre-technology boom; it was back in 1990 before the internet exploded in front of us. So people were only using about 20 to 25 thousand so they didn’t think a quota of 65 thousand could ever be reached in this lifetime. But the technology boom happened, and 65 thousand seems like a joke. Do we expect it to be raised? Honestly, we shouldn’t have had it in the first place. I don’t know why we negotiated that. It was a brilliant anti-immigrant politician who came up with that brilliant scheme to put a lid on it. I don’t know if they will lift that lid. It’s difficult because people are already feeling ripped off when people from abroad are coming in and making all this money while fresh American graduates are not getting such great jobs. Do I expect them to raise it this year, specifically? No.

The only way it might happen is if unemployment continues to slide towards historic lows. At that point, maybe they’d decide to lift the quota.

Once more H-1B visas are allocated, would it benefit the economy or be detrimental as some critics say?

There are two economic schools of thought on this with a very strong divide. There are think tanks that say immigrants are what make America the greatest nation on Earth. Immigrants bring fresh ideals and fresh blood from across the globe. Obviously, that’s my feeling, I’m an immigrant myself — I came here, started a business, what have you.

There’s another line of thinkers who believe immigrants suck up a lot of money, and that the illegal ones in particular who don’t pay social security and tax base, etcetera.

Alan Greenspan said immigration is what keeps our economy charging along. Other authorities have strongly stated that each H1-B immigrant creates three new jobs because they come over and buy houses, cars, and they create more revenue for their employers who can then expand and hire more workers.

My understanding is that it would benefit the economy. But we can’t ignore that there are some strong economic bodies that are also claiming to be independent, claiming not to be xenophobic.

At the end of the day, the economy is going to speak out loud and clear.