H-1B workers’ spouses allowed to work in the US

Washington court decision brings relief to over 90,000 workers on H-4 visas, largely from India

A Washington DC federal judge has upheld an Obama-era policy allowing work permits for spouses of high skilled H-1 B workers bringing relief to over 90,000 workers on H-4 dependent visas, most of them from India.

Upholding the H-4 Employment Authorization Documentation (EAD) rule introduced in 1915, Washington DC district court judge Tanya Chutkan said the Department of Homeland Security (DHS) had reasonably considered the effects of letting the H-1B spouses’ work,

Read: New bill to allow automatic work permits to H-4 spouses (April 8, 2022)

Chutkan’s ruling is also regarded as a win for the US tech sector. Nearly forty companies and associations including Accenture, Amazon, Cisco, IBM, Google, SAP and US Chamber of Commerce had in May 2021 filed amicus brief to support H-1B spouses right to work.

“Great news for @immivoice members,” tweeted Immigration Voice, a non profit that works to alleviate problems faced by high-skilled foreign workers in the United States.

“Because of our efforts over the years to intervene & prevent the removal of #H4EAD, the Courts have now recognized that H-4 EADs are legal & cannot be taken away from our members. We will continue fighting for you in every forum available,” it wrote.

Save Jobs USA, an advocacy group of tech workers had challenged the EAD rule in 2015 contending that DHS wasn’t legally permitted to implement it and it took away American jobs.

“Plaintiff’s primary contention is that Congress has never granted DHS authority to allow foreign nationals, like H-4 visa-holders, to work during their stay in the United States,” Chutkan, an Obama appointee, noted.

Read: USCIS may introduce premium processing for H-1B spouses’ work permits (February 28, 2022)

“That contention runs headlong into the text of the (Immigration and Nationality Act), decades of executive-branch practice, and both explicit and implicit congressional ratification of that practice,” she ruled.

Save Jobs USA said it’d appeal the decision. A lawyer for the group said, “We now have complete chaos as the federal courts have seized control over the immigration system from Congress and handed that authority over to DHS.”

“Congress has expressly and knowingly empowered the US government to authorize employment as a permissible condition of an H-4 spouse’s stay in the United States,” Chutkan ruled.

The fact that the federal government has had longstanding and open responsibility for authorising employment for similar visa classes further manifests Congress’ approval of it exercising that authority, she said.

DHS and its predecessors have authorised employment not just for students, but also for their spouses and dependents, Chutkan noted.

Read: Spouses of H-1B visa holders can work in the United States, judge rules (March 30, 2023)

Also, DHS has long extended work authorization to spouses of foreign government officials and spouses of employees or officers of international organizations, the judge wrote dismissing the Save Jobs suit.

According to a National Foundation for American Policy (NFAP) analysis, 90% of the spouses of H-1B visa holders are female, two-thirds are from India and 6% from China.

“The US can reap significant economic benefits, ease labor shortages, and attract more workers in the global competition for talent if it expanded current rules on work eligibility for the spouses of H-1B visa holders,” the 2022 study by NFAP said.