US court seeks joint status report on H-4 visas

A US court has asked for a joint status report by March 4 on the prospects of work authorisation for H-4 visas, in view of the decision of the Biden administration to withdraw a Trump-era move to rescind work authorisation to certain categories of spouses of foreign professionals on H-1B visa.

Spouses of Indian professionals on H-1B visas, mostly women, are the biggest beneficiaries of the Obama-era rule that gave employment authorisation cards. Judge Tanya S Chutkan, in the US Court of Appeals for District of Columbia Circuit, said that the report, to be submitted by March 4, shall be accompanied by a proposed order as appropriate.

An H-4 visa is issued by the US Citizenship and Immigration Services (USCIS) to immediate family members (spouse and children under 21 years of age) of the H-1B visa holders, most of whom are Indian IT professionals. It is normally issued to those who have already started the process of seeking employment-based lawful permanent resident status.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.

In 2017, the Trump administration announced that it would rescind the Obama-era rule that gave employment authorisation cards to spouses of foreign professionals on H-1B visas. However, the Republican Party-led Trump administration was not able to complete the process in the four years of its rule. During the presidential election, the Biden campaign had promised to withdraw the Trump administration's move.

Last month, US President Joe Biden withdrew the Trump administration's rule rescinding work authorisation for H-4 visa holders. The Office of Management and Budget (OMB) and Office of Information and Regulatory Affairs (OIRA) had said that the proposed rule titled 'Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorisation' was being withdrawn.

Judge Chutkan said: “In light of recent Executive and Administrative actions, the parties shall meet, confer and file a joint status report by 3/5/21 advising the court: 1) whether the current dispute has been mooted or the parties anticipate that it will be mooted; 2) whether the parties wish to stay this action for any reason, including the parties' negotiations over resolving this dispute; or 3) whether the parties agree that this litigation should continue as anticipated pursuant to the federal rules, local rules or a scheduling order”.

In 2015, the Department of Homeland Security (DHS) issued a rule allowing certain H4 dependent spouses of H-1B visa holders to legally seek employment in the US, the letter said. This rule presented an important step towards rectifying gender disparities in the country’s immigration system, as around 95 per cent of H4 visa holders who have secured work authorisations are women.

As of December 2017, the USCIS had approved 1,26,853 applications for employment authorisation for H-4 visa holders. According to a 2018 report by Congressional Research Service (CRS), 93 per cent of approved applications for H-4 employment authorisation were issued to individuals born in India, and five per cent were issued to individuals born in China. The 2015 rule was challenged by Save Jobs USA in a federal court.