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"Hire American" Strikes Again: Work Authorization for H-1B Spouses May Be Eliminated

The Obama-era H-4 visa work authorization program, which has been in place since May 2015, allows qualifying spouses of H-1B visa holders to apply for jobs in the United States after obtaining an EAD (Employment Authorization Document). The ability for spouses of H-1B recipients to work in the U.S. through this program is a major incentive for skilled workers to apply for H-1B visas, and to remain in the United States once obtaining one. The rule was put in place, in part, to decrease employee turnover faced by U.S. employers. But as the current administration fights to stop immigration on many fronts, this rule may soon fall by the wayside. (V&E’s coverage of other immigration issues can be found here.)

On December 14, 2017, the Department of Homeland Security (“DHS”), through a notice of proposed rulemaking, proposed amending the Obama-era rule by eliminating the program entirely. The notice cites the administration’s “Buy American and Hire American” order as the reason for the proposed amendment, and that the anticipated effects are cost-savings from forgone future H-4 spouse visa filings and saved labor turnover costs that might have been incurred by employers of H-4 workers. In other words, DHS expects the rescission of the program to lower the overall number of H-1B visa applications.

Although the rulemaking process takes a long time, employers should keep up to date on changes that could affect the viability and appeal of employing H-1B visa holders. Changes to programs ancillary to the H-1B visa program, and their ultimate effect on H-1B visa holders, should be considered by employers as part of their overall calculus in weighing the costs and benefits of obtaining H-1B visas.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.