Court Upholds Work Permits for Spouses of H-1B Visa Holders

​Eligible spouses of H-1B workers will continue to be allowed to apply for employment authorization in the United States after a federal district court upheld a 2015 Department of Homeland Security (DHS) rule.

U.S. District Judge for the District of Columbia Tanya Chutkan held in favor of the rule in a March 23 decision, citing the executive branch's "longstanding and open responsibility for authorizing employment" for visa holders.

Save Jobs USA, a group representing Southern California Edison IT professionals, had challenged the rule under the argument that the DHS was not legally permitted to issue it.

Accompanying spouses and dependent children of H-1B visa holders are granted H-4 visas, which allow them to reside in the U.S. H-4 visa holders who are spouses were not able to obtain work authorization until 2015, when the Obama administration issued a rule allowing them to apply for employment authorization documents (EADs) if their H-1B spouse was transitioning to legal permanent status.

"With this decision, the court has removed any uncertainty that was associated with the H-4 EAD process," said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va. "The decision is welcome, as it confirms the government's authority to authorize employment to H-4 spouses." 

In an amicus brief submitted to the court, SHRM stated its support for H-4 work authorization. "This [rule] is vital as it allows for more than 90,000 H-4 visa holders, 99 percent of whom are educated women, to continue contributing their skills, education and talent to our economy and communities," SHRM said. "The decision came at an opportune time at the close of another Women's History Month and as the U.S. continues to face a historically tight labor market and competition for top talent. At a time when U.S. businesses are struggling to find vital talent, the U.S. workplace immigration system should not continue to add arbitrary barriers to gaining access to the legally authorized pool of foreign-born workers that U.S. employers need and desire."

About 40 other companies and organizations added their names to the amicus brief, including Amazon, Apple, the Business Roundtable, Google, Intel, Microsoft and the U.S. Chamber of Commerce.

Case History

In 2015, Save Jobs USA filed a lawsuit challenging the H-4 EAD rule, arguing that Congress never granted the DHS the statutory power to authorize employment.  

Chutkan said that contention "runs headlong into the text of the Immigration Nationality Act, decades of executive-branch practice, and both explicit and implicit congressional ratification of that practice."

The district court initially dismissed the suit, ruling that Save Jobs USA lacked standing to challenge the H-4 rule. However, the suit was revived in 2019 when a federal appeals court reversed the district court's decision and allowed Save Jobs USA to continue the suit. The litigation was then put on hold until the Biden administration took office, and the parties filed motions for summary judgment that have been pending since 2021.

While the litigation was pending, the affected visa holders have been able to work.

"DHS continued to issue work permits for these workers while the litigation continued," Paruthipattu said. "By ruling in favor of the H-4 EAD workers, the court essentially removed a cloud hanging over this issue and removed any uncertainty in the matter." 

Paul Hughes, an attorney in the Washington, D.C., office of McDermott Will and Emery, and the author of the amicus brief, said, "The court's correct analysis follows decades of consistent practice and recognition that the executive [branch] may determine categories of visa holders eligible for employment."

In response to the plaintiff's contention that the DHS failed to consider the "negative effect" that the H-4 rule could have on U.S. workers, the court held that "Defendant noted that the H-4 Rule would not result in 'new' additions to the labor market because it simply accelerates the timeframe by which [H-4 spouses] can enter the labor market."

In addition, "Defendant calculated that even if every eligible H-4 spouse took advantage of the rule in the first year, it would amount to less than 0.12 percent of the U.S. workforce. By contrast, Defendant noted that commenters predicting negative impacts on American jobs did not provide any empirical support for that prediction. In light of that data, Defendant concluded that the H-4 rule's benefits outweighed its 'minimal' economic costs."

John Miano, the attorney representing Save Jobs USA, said the plaintiff would likely appeal.

Meeting a Need

Paruthipattu said that not allowing H-4 visa holders to contribute to the economy when they have demonstrated their willingness to remain permanently in the U.S. would be a lost opportunity. "There is an extraordinarily long delay in the green card process for over-subscribed countries like India," he said. "These applicants will not be eligible to obtain green card work authorization anytime soon. Though the principal workers may work under the H-1B visa, their dependent spouses—many of whom are qualified professionals with backgrounds in key sectors of need, including health care, IT, teaching and nursing—had previously been left without work permits. The H-4 EAD work rule fills that gap."