H-1B spouses’ H-4 work authorization means more job competition for U.S. workers: judges

A group of technology workers, allegedly laid off and replaced by foreign citizens on the controversial H-1B visa, scored a major victory Friday in a lawsuit that seeks to scrap a rule granting employment to spouses of H-1B workers.

A federal appeals court panel ruled that the former technology workers have proven that H-1B holders compete against them for jobs and, crucially, that letting H-1B spouses work under the H-4 visa program’s employment authorization increases that competition because if the spouses couldn’t work, some H-1B holders would leave.

Spouses of H-1B workers have since 2015 been allowed to work in the U.S., and many live and are employed in the Bay Area.

The three-judge panel of the Washington, D.C. circuit pointed to public comments submitted when the administration of former President Barack Obama was poised to grant the H-4 work authorization.

“More than sixty commenters wrote that they had planned to move out of the United States, but will instead remain and pursue lawful permanent resident status as a result of the new rule,” according to the judges’ ruling, spotted by BloombergLaw. Two dozen respondents commented that they had already left the U.S. because H-1B spouses couldn’t work, the judges added.

The judges also noted that the federal government, in creating the rule, had asserted that it would provide incentive for H-1B workers and their families to stay in the U.S.

Estimates of the number of H-4 visa holders with work authorization in the U.S. range from 90,000 to 100,000. University of Tennessee researchers concluded that the vast majority are women from India.

Two of the workers who filed suit against the Department of Homeland Security over the H-4 work authorization declared in affidavits that they worked as IT specialists at utility Southern California Edison for more than 15 years “until they were fired and replaced by H–1B visa holders,” the judges said. A third had been a systems analyst at the utility for 20 years “until she, like the other two, was fired and replaced by an H–1B visa holder,” the judges said. “All three have been actively looking for new jobs in the technology sector, including by attending job fairs, participating in job placement programs, and submitting job applications.”

Homeland Security insists that any career damage caused to the IT workers results from the H-1B program, not the spousal work authorization, the judges noted.

“We disagree,” they said. “The rule will cause more H–1B visa holders to remain in the United States than otherwise would — an effect that is distinct from that of the H–1B visa holders’ initial admission to the country.”

The tech workers first sued in 2015, and initially lost their case in federal district court in 2016 before appealing. The appeals court then put the matter on hold amid the transition from the Obama administration to that of President Donald Trump, at first to allow the new administration to consider the employment authorization, then later because Homeland Security was promising to eliminate the work authorization. The court revived the case in December. Friday’s ruling officially threw out the workers’ district court loss and ordered that the case continue on appeal.

A group representing major Silicon Valley technology companies and global outsourcing firms in April filed a court brief in the tech workers’ appeal, arguing that it leads to economic growth and creates about as many jobs as it takes away. In the brief, the Information Technology Industry Council — which represents companies including Google, Apple, Facebook, Oracle, HP, and outsourcers Accenture, Cognizant and Tata — joined the U.S. Chamber of Commerce and the National Association of Manufacturers in maintaining that the H-4 work authorization “has had significant, positive effects on the U.S. economy as a whole.”

Meanwhile, Homeland Security has several times delayed scrapping the rule, most recently telling lawyers in the Southern California Edison workers’ case that the earliest it could come up for public comment would be spring 2020, a timeline they described as “aspirational.”

The H-1B has become a flashpoint in America’s immigration debate. Major technology firms, including Silicon Valley tech giants, rely heavily on the visa, and push for an increase to the annual 85,000 cap on new visas. Critics point to reported abuses by outsourcing companies, and argue that those firms, as well as tech companies using contract H-1B labor, use the visa to supplant U.S. workers and drive down wages.

Source: Mercury news
H-1B spouses’ H-4 work authorization means more job competition for U.S. workers: judges