Tens of thousands of foreign nationals living legally in the United States could soon lose government permission to earn a living while they are here.
The Trump administration could end a program as soon as February that allows the spouses of legal foreign workers, mainly tech workers from India and China, to obtain their own work visas.
Ending or changing the Obama-era rule could have major effects in western Wake County, where a group of 200 people – almost all women – have organized to fight against the potential change, writing letters and meeting with their members of Congress.
Abhigna Polavarapu is among them. She came to the United States on a student visa, earning her masters’ degree in bioinformatics and a doctorate in computational chemistry. Now, on a visa for spouses of highly skilled workers holding H-1B visas, she’s working as a research scientist at UNC-Chapel Hill.
She and her husband have two children, a 3-year-old girl and a 4-month old boy. Both are U.S. citizens. They live in Cary, where they own a home.
“Me not working with a PhD? I would not like to just sit at home because the visa does not permit me to work after all this effort into my education and research,” said Polavarapu, whose visa expires at the same time as her husband’s and must be renewed in May. “It will be a bad example that I cannot show them that your effort pays off at the end.”
The Obama administration implemented the rule known as H4 EAD, or employment authorization documents, in 2015, in part to help deal with a massive backlog of H-1B visa holders from India and China waiting for green cards. Some estimates put the backlog at more than 1 million.
H-1B visa holders from India can remain in the green card queue for years. If the backlog were to remain at current levels, they could wait up to 70 years, according to members of the group. The H4 EAD allows their spouses to work while they wait for a green card. Previously they were allowed to accompany their spouse to the United States, but not to work.
The Department of Homeland Security announced plans last fall for the change, citing President Donald Trump’s “Buy American and Hire American” executive order issued in April. The order tells agencies, among other things, to “protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”
“The agency is considering a number of policy and regulatory changes” to carry out the executive order, said Joanne Talbot, a spokeswoman for Homeland Security, “including a thorough review of employment based visa programs. No decision about H4 visas is final until the rulemaking process is completed.”
The work authorization for a spouse is not tied to a specific employer, unlike an H-1B visa, and it must be renewed at the same time as the H-1B visa. More than 104,000 visas have been distributed to spouses in the three-plus years since the rule was changed. The rule change was first proposed in 2012, but was implemented in 2015.
Still, those workers remain a fraction of the country’s legal foreign workers. In fiscal year 2016, the last year for which complete information is available, 41,526 people were on the spouses’ visas, 3 percent of the 1.268 million foreign workers with employment authorization documents, according to U.S. Citizenship and Immigration Services.
The program for spouses is the subject of a lawsuit. John Miano, an attorney who represents a group of American workers in the case, contends the Obama administration had “no authority whatsoever to make the rule.”
“Add up all these admissions of foreign labor, it starts adding up. It’s huge,” Miano said. “It’s supposed to be a guest worker program, but your wife can work anywhere? It’s completely nonsensical.”
H-1B visas are awarded for three years and then renewable for another three years. After that, workers can apply for permanent legal status. It is only at that point that their spouses can apply for H4 EAD status.
Vesudha Mor, a 36-year-old Cary resident, left her job and career in India to join her husband in the United States in 2010. She tried to secure an H-1B visa of her own with no luck before obtaining a spouse’s visa after the Obama administration made them available in 2015.
“It’s not about just a work permit,” she said. “We did a lot of financial planning.”
She and her husband have two daughters, an 8-year-old and a 5-year-old. The youngest is an American citizen. The family recently bought a second home but plans to sell one of their houses because of uncertainty over visa status. If Mor loses her ability to work, she said her family would consider moving to another country.
“We will not live here because once you expand your family, you start planning your financial things, you cannot shrink yourself in the middle. I cannot stop doing the things that I want to do for my future,” she said. “I can earn money. Why can’t I? It’s better I can go to another country.”
Mor works as a data analyst for a computer company. She put her career on hold once – and she doesn’t want to have to do it again.
“I’m hopeful,” she said. “The rule which came earlier was based upon the data and all the facts.”
Mor is hardly alone. A group of about a dozen women met with Rep. David Price, a Chapel Hill Democrat, in Durham last week to lobby on behalf of the current rule. A different group met with staffers from Republican Rep. George Holding’s office in Raleigh.
“The 2015 change needs to be preserved. We want to do everything we can to head off a change in that,” said Price, citing what he said was a careful rule-making process that went into implementation. “If you’re just saying to them that they’re going to be relegated to simply staying at home no matter what the family situation is, no matter what their needs are, that’s going to make the situation for that family more difficult and for the visa holders more difficult.”
Some in Congress have tried to address the green card backlog by eliminating the per-country cap, which could help reduce the need for a work authorization for wives and husbands. It’s one thing to wait a year or two for their spouses’ green card to come through; it’s another to wait decades.
Currently, no single country can account for more than 7 percent of all green cards given out in a single year, which has led to the backlog for high-population countries such as India and China.
Rep. Kevin Yoder, a Kansas Republican, introduced the “Fairness for High-Skilled Immigrants Act” with more than 300 co-sponsors in the House. The bill would eliminate the per-country limit for employment-based immigrants. Sen. Mike Lee, a Utah Republican, has introduced identical legislation in the Senate.
Some pro-immigration activists have even proposed having Indian and Chinese visa holders pay higher fees — with the money being used for Trump’s border wall — in order to expedite the green card process.
Trump, however, campaigned as an immigration hardliner and proposed a major reduction in legal immigration. As part of his executive order, Trump called for changes to the H-1B program that “shift the program back to its original intent and prevent the displacement of American workers.”
“If you’re an American worker, two-thirds of the House is sponsoring a bill to deal with this backlog. Where is the bill to ban Americans from being replaced by H-1B workers? They’re not looking out for American citizens,” Miano said. “Where is the bill saying you can’t replace an American with a foreign worker, period? That’s why Donald Trump is president, folks.”