H-4 work authorisation renewal woes continue for H-1B dependents

After tackling H-1B visas, now come to grips with H-4 delays. Since the Joe Biden administration took over on January 20, 2021, there have been developments that favoured H-1Bs and their dependents, H-4 visa holders, many of them Indians.

However, not much progress has been made when it comes to addressing huge delays in processing H-4 renewals.

Hundreds have already lost jobs so far and many others will go down the same path, unless the US immigration agency addresses the issues, say visa holders and experts.

According to data from the US Department of State, close to 57,500 H-4 visas were issued in FY20 to Indians, of a total of 66,323 such visas issued. In FY19, of the 1.25 lakh H-4 visas that were handed out, over 1 lakh were Indian recipients.

A US court on February 2, 2021, has asked for a joint report on work authorization for spouses of H-1B visa holders by March 5. Spouses hold the H-4 visas. This came after the Biden administration rescinded the Trump-era rule that intended to ban H-4 visa holders from working in the US.

The Trump Administration was seeking to terminate the H-4 Employment Authorisation Document (EAD) programme through the rule “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”. It was revoked by the Biden administration last month.

According to immigration attorneys, this joint report was for the ongoing lawsuit filed by an organisation, Save Jobs USA, against the work authorisation granted to the spouses of H-1B visa holders under the Obama administration in 2015. The rule enabled thousands of educated spouses to work in the US and a significant number of them were Indians.

The group has claimed that allowing the H-4 visa holders to work, took away the jobs from Americans.

The joint report must be submitted by March 5, 2021, on three counts, according to the order by Judge Tanya S Chutkan. The three are: if the dispute can be declared moot, negotiations to solve the dispute or if the case should continue.

It is unlikely that the court can declare the lawsuit moot. Joel Yanovich, Immigration Attorney, Murthy Law Firm in the US, said, “I do not see how the court could rule the lawsuit to be moot.”

“Had Trump been successful, the lawsuit would have been moot. Now, however, the Biden Administration has no intentions of ending the programme. Therefore, this lawsuit will presumably continue,” he explained.

Meanwhile, the impact has been felt on the H-4 renewals, and the delay in their processing.

Since the Trump administration took over in 2017, H-4 work authorisation visas came under fire. This resulted in increased denial rates and processing delays that led to job losses, most of them women. To make things worse, the administration introduced mandatory biometrics for H-4 renewals in March 2019, which further delayed the processing.

From a couple of months, it took as long as a year for some to get their H-4 work authorization. A new lawsuit filed against the US Citizenship and Immigration Services (USCIS) has alleged that the USCIS takes two years to process the visa. The plaintiff in the case is Deepika Gona, who was working with the Maryland Department of Human Services for IT Infrastructure Transformation, according to a Forbes report.

The report, quoting the lawsuit, said that Gona was waiting to get her H-4 EAD renewed for about seven months and has now been forced out of work. She is not alone though and while the pandemic has made things worse, the delay in processing has been an issue.

These delays disproportionately affect Indian women, who account for the significant share of the H-4 EAD approved.

I do not see how the court could rule the lawsuit to be moot

- Joel Yanovich

Take for instance the case of Janani*, who was working in the US under H-4 EAD since 2018. When her husband’s H-1B expired in 2019, she had to apply for renewal since her visa validity is dependent on H-1B visa holders.  However, she did not get her work authorisation visa for more than half a year, leading to her being terminated from her job.

“Finally, at the end of 2019, we decided to move back to India. With two young daughters, the uncertainty was taking a toll on my mental health and it was more than we could bear,” she says.

Pandemic has made a bad situation worse. Neha*is another sad story. A techie with H-4 EAD, she applied for extension of her visa in June 2020. She is yet to get a biometric appointment.

Another dependent, who lost her H-4 work permit, is debating whether to stay in the US or move to other countries like Canada, where at least the level of uncertainty is low.

The Biden administration appointed Alejandro Mayorkas, the first Latino to head the Department of Homeland Security recently. There are hopes that things would change under his leadership by expediting H-4 processing delays.

Save H4EAD, a group formed in 2017, which comprises individuals keen to protect their crucial visas, said in a statement, "Our current focus is to get immediate relief for thousands of skilled legal immigrants (mostly women), who are being artificially pushed out of their livelihoods due to bureaucratic delays and bad policy regulations."

With consulates working at limited capacity due to COVID-19, it is not clear how soon the situation could be resolved. Immigration experts point out that process delays will continue at least for a few more months before any progress is visible on that front.

But for these women though, uncertainty will continue in the meantime.

*Names changed to protect identity