Spouses of H-1B visa holders can work in US: Know about the H-4 visa

Good news for Indian techies in the US! An appeals court has upheld a federal rule allowing spouses of H-1B visa holders to work in the United States. This decision comes from a three-judge panel of the US Court of Appeals for the District of Columbia Circuit, which dismissed the challenge brought forth by Save Jobs USA, a group representing US-born tech workers. The court's ruling affirmed a lower court's decision, ensuring that the "Employment Authorization for Certain H-4 Dependent Spouses" regulation, established during the Obama administration, remains in effect.

Key points:

The Department of Homeland Security (DHS) implemented the rule in 2015 under President Obama.

It allows certain spouses of H-1B visa holders to work in the US.

Legal challenge: Save Jobs USA appealed against a March 2023 ruling in favour of the regulation.

Court’s justification: The appeals court cited precedent, ruling in favour of DHS’s authority.

Leading tech companies and business groups backed the regulation.

What are the H-1B and H-4 visas?

H-1B visa explained

The H-1B visa is a nonimmigrant work visa that allows US employers to hire foreign workers with specialised skills. These roles typically require a bachelor’s degree or higher. H-1B visa holders often work in fields such as technology, engineering, finance, and architecture. The visa is essential for the US tech industry, which relies on highly skilled foreign professionals.

H-4 visa explained

The H-4 visa is granted to dependents of H-1B visa holders, specifically their spouses and unmarried children under 21. This visa allows them to accompany the primary visa holder to the US and reside there for the duration of the primary visa holder's stay. In certain circumstances, H-4 visa holders can also apply for work authorisation, allowing them to seek employment in the US.

Eligibility for H-4 Visa

To be eligible for an H-4 visa, applicants must:

Be the spouse or unmarried child under 21 of an H-1B visa holder.

Have a primary visa holder in valid status.

Demonstrate financial support from the primary visa holder.

Have no criminal record.

Cost and process of H-4 visa

The government filing fee for an H-4 visa is $205. The process involves determining eligibility, collecting required documents, completing the application, scheduling and attending a visa interview, and receiving the visa upon approval.

Why was the challenge raised?

Save Jobs USA, representing US-born tech workers, argued that the DHS lacked the authority to allow H-4 spouses to work in the US. They first filed a lawsuit against the H-4 employment authorisation rule in 2015, which was paused during the Trump administration. The group contended that the rule threatened US jobs and should be rescinded.

The court, however, noted that the case was similar to previous litigation involving Optional Practical Training (OPT) for F-1 students. The court had previously interpreted the Immigration and Nationality Act (INA) in favour of DHS's authority to regulate employment conditions for visa holders. "Save Jobs USA failed to provide a meaningful distinction between their case and the precedent, leading the court to uphold the district court's summary judgment in favour of DHS," news agency Reuters reported.

Save Jobs USA argued that Supreme Court ruling in the Loper Bright Enterprises v. Raimondo case, which curtailed the powers of federal agencies, should affect their lawsuit. The Supreme Court decision ended the practice of "Chevron deference," where courts deferred to federal agencies' interpretations of ambiguous laws they enforce.

The DC Circuit court acknowledged the Supreme Court ruling but stated that their previous decision did not solely rely on Chevron deference. They had also found that federal law clearly authorised the DHS rule in question. Therefore, the Supreme Court's ruling did not impact the appeals court's decision to uphold the H-4 employment authorisation regulation.

Support from tech companies

Leading tech companies and business organisations strongly supported the H-4 rule. Companies like Google, Amazon, and Microsoft filed briefs with the lower court, arguing that allowing H-4 spouses to work would benefit the US economy. They contended that eliminating H-4 work authorisation would negatively impact US gross domestic product and push talent and innovation to other countries.

According to Reuters, the business community said that allowing H-4 spouses to work would encourage H-1B workers to seek permanent residency (green cards), making it easier for companies to retain highly skilled employees. “This retention is important for maintaining the competitiveness and innovation of the US tech industry,” they said.

Impact on Indian skilled workers

The court’s decision has significant implications for the US tech industry and its ability to attract and retain highly skilled foreign workers. By allowing H-4 spouses to work, the regulation helps create a more favourable environment for H-1B visa holders, who might otherwise be reluctant to move to the US without their spouses having the opportunity to work. The leading users of H-1B visas are Indian outsourcing firms. In 2021, half of the top thirty employers of H-1B visa holders were specifically outsourcing firms. Hence, this move is likely to benefit spouse of the H-1B visa holders.