Spouses of H-1B visa holders can work in US, says judge

A judge in the US has ruled that spouses of H-1B visa holders, a significantly large number of whom are Indians, can work in the country, in a big relief to foreign workers in the American tech sector which has seen massive retrenchments.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. Technology companies depend on it to hire tens of thousands of employees each year from countries like India and China. US District Judge Tanya Chutkan dismissed a lawsuit filed by Save Jobs USA which had approached the court to dismiss the Obama-era regulation that gave employment authorisation cards to spouses of certain categories of H-1B visa holders.

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Save Jobs USA is an organisation comprising IT workers who claim they lost their jobs to H-1B workers Tech companies such as Amazon, Apple, Google, and Microsoft had opposed the lawsuit. The US has so far issued nearly 1,00,000 work authorisations to spouses of H-1B workers. In her order, Judge Chutkan said the primary contention of Save Jobs USA is that Congress has never granted the Department of Homeland Security authority to allow foreign nationals, like H-4 visa-holders, to work during their stay in the United States. But that contention runs headlong into the text of the Immigration and Nationality Act, decades of executive-branch practice and both explicit and implicit congressional ratification of that practice, she wrote.

The judge wrote that Congress has expressly and knowingly empowered the US government to authorise employment as a permissible condition of an H-4 spouse’s stay in the United States. The fact that the federal government has had longstanding and open responsibility for authorising employment for similar visa classes further manifests Congress’ approval of it exercising that authority, she said. The Department of Homeland Security and its predecessors have authorised employment not just for students, but also for their spouses and dependents, Judge Chutkan wrote in the ruling.

Also, the Department of Homeland Security has long extended work authorisation to spouses of foreign government officials and spouses of employees or officers of international organisations, the judge wrote as she dismissed the lawsuit filed by Save Jobs USA. Ajay Bhutoria, a prominent community leader and advocate for immigrant rights, applauded the court’s decision to allow H-1B spouses to work and support their families. The H-1B visa programme is designed to allow skilled foreign workers to come to the United States and work for American companies. However, until recently, H-1B spouses were not allowed to work, which often placed a significant financial burden on families, he said.

“With the court’s decision to allow H-1B visa holders’ spouses to work, thousands of families across the country will be able to breathe a little easier. This decision will provide much-needed relief to families who have been struggling to make ends meet and it will help to ensure that these families can stay together and thrive,” Bhutoria said. “Allowing H-1B spouses to work is not just a matter of economic fairness, but it is also a matter of family unity and stability. I applaud the court’s decision, and I hope that this is just the first step towards a more compassionate and equitable immigration system,” he said.

Save Jobs USA said it plans to appeal against the court ruling. Thousands of Indian IT professionals in the US, who have lost their jobs due to the series of recent layoffs at companies like Google, Microsoft and Amazon, are now struggling to find new employment within the stipulated period under their work visas following the termination of their employment to stay in the country. According to The Washington Post newspaper, nearly 200,000 IT workers have been laid off since November last year, including some record numbers in companies like Google, Microsoft, Facebook and Amazon.

As per some industry insiders, between 30 to 40 per cent of them are Indian IT professionals, a significant number of whom are on H-1B and L1 visas. The situation is getting worse for those on H-1B visas as they have to find a new job within 60 days or else, they would be left with no other option but to head back to India. Under current circumstances, when all IT companies are on a firing spree, getting a job within that short period, they feel is next to impossible.