Bloggings on Immigration Law

by Roger Algase

Bloggings: H-4 Employment Smoke and Mirrors: Will H-1B Also Become Only an Illusion? By Roger Algase

Two recent ID articles, one by Gary Endelman and Cyrus D. Mehta (May 6) and the other by Tahmina Watson (May 7) point out a curious anomaly in the H-1B provisions of the Senate CIR bill.

The bill contains a provision which would allow H-4 spouses of H-1B employees to work, just as the L-2 spouses of L-1 visa holders are currently allowed to do. But there is a joker in the deck of cards: unlike L-2 spouses, H-4 ones would only receive work permission based on reciprocity, i.e. if the H-4 visa holder's country of citizenship offers the same benefit to the spouses of US citizens authorized to work in that country.

As both of the above articles also mention, there may be few, if any, foreign countries which have such a reciprocal provision. The Endelman-Mehta article points out that India, for example, has no work visa that is analogous to H-1B at all. How many other countries do?

Even if there are any countries which have work visas that might resemble H-1B in some respect, it is quite safe to say that no other country on earth has an exact counterpart. H-1B, unlike, for example, E-1 and E-2, is not a treaty-based visa, so no other country can be expected to have an exactly equivalent law. 

Who will decide whether a given foreign country has a work visa which is close enough to H-1B to be the basis of reciprocity with the US (assuming that such country allows spouses of US employees to work at all)? What will be the standards for making such a decision?

These questions pretty much answer themselves. It is a quite reasonable prediction that unless reciprocity is "tweaked" out of the current bill, as Tahmina Watson recommends in her article, the annual number of H-4 spouses granted work permission each year will continue to be exactly what it is now - zero.

Why is this issue important? Of course, it would be highly beneficial to the US to make full use of the talents and abilities of people who are already legally here. The fact that an accomplished, highly educated H-4 visa holder such as the Indian woman mentioned in the Seattle Times article cited by Tahmina Watson is not allowed to put her abilities to use in gainful employment is a sad commentary on the current state of our law.

But, arguably, there are larger and more important groups of people, with even more fundamental rights, such as the right to marriage equality, who are left out under both our current immigration system and the Senate CIR bill. So why the emphasis on H-4 employment rights? No one ever said that CIR would be perfect.

If CIR can be said to resemble a "big tent" of conflicting approaches to immigration, is it surprising that there would also be a big nearby bus for people to be thrown under when there is no room for them in the tent?

There is an answer to this question, however, that goes beyond H-4, to the heart of H-1B itself. If one looks carefully at the H-1B provisions in the Senate CIR bill, as Gary Endelman and Cyrus Mehta have done, and for which we all owe them a great debt of gratitude, how many people will actually be eligible to receive H-1B approvals at all if this bill becomes law? 

The combination of inflated prevailing wages, labor certification-like advertising requirements, investigations, draconian penalties for non-compliance and stratospheric fees, to mention only some of the H-1B restrictions in the bill, may doom the H-1B program entirely. 

In other words, not only H-4 work permits, but H-1B ones as well, may turn out to be only smoke and mirrors if CIR is enacted in its current form. If no H-4 spouses receive work permission, it may be because there will be few if any H-1B principal employees to begin with.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.