The ace lawyer says the ambiguity in the Jan. 17 notification on “compelling circumstances” EAD leaves much to be desired.
Prominent immigration lawyer Sheela Murthy said that it is likely that the Trump administration could reverse the work authorization for spouses of H-1B visa holders.
Murthy, the founder of Murthy Law Firm, one of the nation’s top immigration law firms, pointed out that a draft executive order that is being circulated “calls for the Department of Homeland Security to review all regulation that allow foreign nationals to work in the US to determine which of those regulations violate US Immigration laws, or otherwise are not in the national interest.”
She said that it “is a coded message for certain classes of EADs like the H4 EAD program.”
The US Citizenship and Immigration Services began issuing Employment Authorization Document (EAD) to H4 visa holders in May 2015.
The work authorization for H-1B spouses, who enter the United States on H4 visa, came after much deliberations. The Obama administration issued an executive order in 2014 to allow work authorization to H-1B holders in line for green cards or permanent residency. The decision was made realizing the economic hardships that H-1B spouses bear, though being highly skilled and job eligible.
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“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” USCIS Director Leon Rodríguez said in 2015. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”
Only those H4 visa holders who are the beneficiaries of an approved Immigration Petition for Immigrant Worker (Form 1-140), or those who are the spouses of H-1B visa holders who have got an extension of their authorized period of admission in the US, beyond the permitted six years that is eligible for EADs.
But allowing H4 visa holders to work has been controversial right from the beginning. An anti-H-1B group, Save Jobs USA. challenged the move in court. As The American Bazaar reported last month, the administration asked for 60 days to come up with a position on the issue.
Murthy, based in Owings Mills, MD, said the USCIS may even tighten the I-140 EADs given under the so-called compelling circumstances.
Earlier, the USCIS had allowed certain visa-holders, including H-1B1 and L1 holders, to apply for separate EADs “for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.”
The agency issued a notification on January 17 adding two eligibility categories. It said that the “USCIS may grant employment authorization and issue” an EAD in these two categories — which included E-3, H-1B, H-1B1, L-1, O-1 visa holders and their spouses — “for up to one year if we determine that there are compelling circumstances that justify issuing employment authorization.”
Murthy said “we were hoping for a much more literal interpretation” of what a “compelling circumstance” is and the absence of that leaves much to be desired. “[Since] we never had any cases because the law only became effective only from 17th of January, whether they will define compelling circumstances so narrowly as to almost — allow nobody to go through barring some kind of weird unusual humanitarian kind of situation as opposed to a much more broader [definition],” she said.
India is a main beneficiary of the H1B visa program, with as much as 70 percent of visas in these categories issued to Indian nationals.
The Trump administration is already in a repealing spree to reverse several of Obama-era regulations. In February, it requested for a 60-day time to respond to a court case filed by on reversing work authorization of H4 visa holders. This, however, is now looked as an initial sign for bigger changes to non-immigrant work visas.
(This post has been updated.)