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Trump admin. announces end to work permits for H-1B spouses

If your spouse is working in the United States on an H-1B visa, you may already know that you are eligible for an H-4 visa, which comes with a work permit. That may be changing. The Trump administration has announced a plan to end the H-4 visa's work permit.

The move could affect nearly 100,000 immigrant families -- almost 30,000 of them here in California. And in the Bay Area, H-1B visa holders may not be able to support their families without a working spouse.

"If you have 100,000 people who are extremely well-educated, and on the path to getting green cards, and are either indirectly stimulating economic growth or directly creating jobs for native-born Americans by starting companies in this country, why would you pull out the rug from all these people?" asked an immigration advocate who helped get the H-4 visa created.

The change is not yet official. There are several steps that must be taken before that can happen:

  • First, the White House has to sign off on the draft regulation, which is what has actually been announced
  • Once it does so, the proposal will be published in the Federal Register, where all federal regulations are published
  • Once it is published in the Federal Register, a 30- to 90-day public comment period begins. Any member of the public can comment on the rule during this period
  • When the comment period closes, the administration is legally required to review the comments and consider revisions
  • Only then would a final regulation be issued

Even then, the change might not go into effect right away. For one thing, Congress might choose to pass legislation reaffirming the H-4 visa, making any opposing regulation ineffective.

For another, there is already a federal lawsuit in progress to challenge the end to H-4 work permits. That lawsuit is sitting at the D.C. Circuit Court of Appeals, which has been granting the administration extensions while it finalized the proposal. With the proposal essentially in its final form, the appeals court has ordered the case to begin. The first briefs are due in March.

The D.C. Circuit Court of Appeals could issue an injunction to halt the proposed rule if it finds that it has not been passed properly or is unconstitutional.

Even if the court finds that the proposed rule is valid and allows it to go into effect, it is unlikely that existing H-4 visa holders would be affected immediately. It is more likely that people would not be able to renew their H-4 visas once they expired.

If you are the spouse of an H-1B visa applicant, contact Yew Immigration Law Group for more information about your options.

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