With more than a year lapsing since the Department of Homeland Security (DHS) first proposed to amend immigration law to allow H-4 visa holders, the spouses of those holding H-1B visas, to work under certain conditions, the U.S. federal agency this week announced the formal publication of the new rules, implying that they would enter into force soon, possibly 60-day public comment period.

The ruling is likely to have particular salience to visa holders of Indian citizenship, particularly those working in the IT sector, as India is the country receiving the largest proportion of H-1B visas from the U.S. every year. In 2013, its citizens received 99,705 H-1B visas of a total of 153,223 issued globally, slightly over 65 per cent.

In a statement DHS Deputy Secretary Alejandro Mayorkas, said that as part of the administration’s proposals to “attract and retain highly skilled immigrants,” the new rules had been proposed because, “Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

Mr. Mayorkas noted that up to 97,000 H-4 visa holders may be eligible to apply for employment authorisation under this rule within the first year of its entering into force and 30,000 may benefit annually.

On a call with media in Washington, Commerce Secretary Penny Pritzker highlighted the transformative role of immigrant entrepreneurs in the U.S. economy. She said, “Many tire of waiting for green cards and leave the country to work for our competition. The fact is we have to do more to retain and attract world-class talent to the U.S. and these regulations put us on a path to do that.”

As the DHS did when the proposals were initially announced in January 2013, it was careful to clarify that the extension of work authorisation to H-4 visas would only apply in the cases of H-1B visa holders, who had begun the process of seeking “lawful permanent residence” in the U.S., in other words a ‘green card’ application. Currently, DHS does not extend employment authorisation to H-4 dependents.

The changes were initially announced in 2013, a few months after The Hindu carried a series of articles (‘For Indian women in America, a sea of broken dreams,’ July 29, 2012 and ‘On the H-4, a trail of misery and lonely battles,’ July 30, 2012) that spotlighted the debilitating personal circumstances faced by many H-4s.

These included depression, loss of enthusiasm and self-esteem associated with joblessness and social isolation, in numerous cases leading to mental health issues or familial breakdown.

Reflecting a greater sensitivity to this reality of spouses of H-1B visa holders, the DHS said during its initial announcement of the proposed changes that it, “recognises that the limitation on the period of stay is not the only event that could cause an H-1B worker to leave his or her employment and cause disruption to the employer's business, inclusive of the loss of significant time and money invested in the immigration process... This rule will encourage H-1B skilled workers to not abandon their adjustment application because their H-4 spouse is unable to work.”

The proposed rules granting employment rights to some H-4 visa holders were also “intended to mitigate some of the negative economic effects of limiting H-1B households to one income during lengthy waiting periods in the adjustment of status process,” the DHS noted in 2013.

However, the DHS emphasised applicants seeking to obtain the right to work in the U.S. on this basis should bear in mind that the proposed changes would only impact spouses of H-1B workers, who have been admitted or have extended their stay under the provisions of the American Competitiveness in the Twenty-First Century Act of 2000 or AC21.

Pre-empting criticisms that the new rules may lead to job losses for American citizens, the DHS said, “Allowing certain H-4 spouses the opportunity to work would result in a negligible increase to the overall domestic labour force. The benefits of this rule are retaining highly-skilled persons, who intend to adjust to lawful permanent resident status.”

The latest change in rules come on the back of numerous top U.S. company heads, including Facebook’s Mark Zuckerberg lobbying in Washington for the passage of bipartisan immigration reform legislation that would better permit U.S. companies to recruit highly talented foreign citizens.

However, despite the U.S. Senate passing a sweeping comprehensive Immigration Reform Bill in 2013 year, the Republican-led House of Representatives has blocked debates on the floor, ostensibly due to concerns that a ‘path to citizenship’ for the nearly 11.5 million undocumented immigrants could have a potential negative impact on the U.S. economy.

U.S. President Barack Obama now appears to be leaning towards the use of executive actions to take immigration reform forward in a piecemeal format, and this week’s DHS proposals would reflect such change of tack.

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