Spouses of H1-B Visa Holders Retain Right to Work

From all around the world, highly skilled workers come to the United States and offer their talents in technology, healthcare, construction, and other industries. One big draw is the ability for their spouses to work in this country as well. However, that right was recently challenged in Save Jobs USA v. U.S. Department of Homeland Security. But on Tuesday, March 28, 2023, U.S. District Judge Tanya Chutkan dismissed that challenge, and foreign workers breathed a sigh of relief.

How the Case Came About

Per the Immigration and Nationality Act, the Department of Homeland Security (DHS) uses its broad authority to enforce immigration laws. And part of that authority involves work authorization. DHS issues H-4 visas to hundreds of thousands of spouses of H1-B visa holders, allowing them to work in the United States. The agency believes this practice benefits the nation’s economy and its businesses. Knowing that their spouses can also seek employment is often a significant incentive for highly skilled workers to obtain their green cards and keep their in-demand skills in this country.

Save Jobs USA is the organization that filed the lawsuit. It represents I.T. professionals who assert they have lost their jobs to H-1B visa holders. The group claims DHS has no legal authority to create or carry out this rule. Had the lawsuit succeeded, it could have eliminated work options for more than 90,000 new H-4 visa holders.

The Reasoning Behind the Ruling

Big technology companies considered the dismissal to be a major victory. Companies including Microsoft, Amazon, and Apple supported the rule and urged Judge Chutkan to uphold it. They and other tech companies had joined the U.S. Chamber of Commerce in filing a brief for the case. They stated that ending the H-4 visas “would not only siphon off U.S. gross domestic product, but gift that productivity — and the innovation that comes with it — to other nations.” In addition, they asserted that the ability of a spouse to work has a huge impact. They claimed that 87 percent of the families affected by H-4 visas have made critical life decisions, such as having children or buying houses, based on whether the spouse could seek employment.

Years ago, Judge Chutkan dismissed the original case, determining that Save Jobs USA did not have the standing to challenge the DHS rule. However, in 2019, a federal appeals court reversed that ruling, thus reviving the case.

In her current dismissal, she explained: “Plaintiff’s primary contention is that Congress has never granted DHS authority to allow foreign nationals, like H-4 visa-holders, to work during their stay in the United States. 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.”

An attorney representing Save Jobs USA indicated that the organization would likely appeal.

What This Means for Employers

For now, the H-4 visa rule remains in place. So, employers trying to lure highly skilled workers to this country can still rely on the premise that spouses also can work. If the case is appealed again, it will be interesting to see how far the issue goes.

In the meantime, do not hesitate to consult legal counsel if you have questions about H1-B visas and H-4 visas for spouses. An experienced immigration or employment attorney can advise you about your options and help you create strategies for securing the best workers for your company.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

About the author: Trent Cotney is a partner and Construction Practice Group Leader at the law firm of Adams and Reese LLP and NRCA General Counsel. For more information, please contact the author at [email protected].