The Trump administration has failed, despite its best attempts, to kill an Obama-era rule that allows the spouses of immigrant tech workers to get jobs. But that hasn't stopped immigration officials from stalling the program right under regulators' noses.
Over the last year, U.S. Citizenship and Immigration Services has been slow-rolling work authorization approvals for H-4 visa holders, who are the spouses of high-skilled immigrants on H-1B visas — many of whom work in tech. Renewal applications that used to take a matter of weeks to be approved are now taking upwards of six months to process, according to court documents and USCIS's own website. That delay often exceeds the expiration date for workers' current visas, forcing an untold number of people to lose their jobs when their legal status expires.
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Since last year, hundreds of H-4 visa holders have sued USCIS over these wait times in mass litigation cases across the country. But these suits have garnered little attention, because in almost every one, USCIS has then approved all of the plaintiffs' applications before a judge had a chance to hear the case. By that time, many of the people involved had already lost their legal status and their jobs, and had spent thousands of dollars on lawyers.
They couldn't kill [the rule] legally, so they're killing it through delay. — Jonathan Wasden, attorney
Jonathan Wasden, a Virginia-based attorney who has represented some 700 people in these cases over the last year, argues this is strategic on the part of the government; by settling these lawsuits before a hearing, he says, USCIS is preventing courts from issuing an order that could prevent future delays.
"They're just playing games with these plaintiffs and the court in an attempt to try to evade review of what they're doing," said Wasden, a partner at the firm Wasden Banias. "They couldn't kill [the rule] legally, so they're killing it through delay."
The vast majority of H-1B visa holders are men. That means the vast majority of spousal H-4 visa holders — and therefore the vast majority of these plaintiffs —are women. Like their spouses, many of these women, who are predominantly Indian, work in technology themselves and hold advanced degrees. In the gap between their visas expiring and being renewed, they lose more than their jobs. They often lose health insurance for their families, and because their driver's licenses are tied to those visas, they lose their freedom, too.
The plaintiffs Protocol spoke with compared this waiting period to being "handicapped," "on house arrest" and "in jail." That's to say nothing of the disruption these delays cause to their employers, which include large corporations and even government agencies.
"God is really testing us," said Sai, one Arkansas-based plaintiff, who lost the managerial position she'd held for four years with a food industry giant after her visa expired in December, five months after she applied to renew it. Like the other women in this story, Sai didn't want identifying details shared in this article for fear press exposure could affect her case. "I just pray, but other than that, there's nothing I can do."
Women like Sai were only granted the right to work in the United States during the tail-end of the Obama administration. In 2015, the Department of Homeland Security issued a rule creating employment authorization documents for H-4 visa holders whose H-1B spouses had taken steps toward gaining legal permanent residence status.
"Allowing the spouses of these visa holders to legally work in the United States makes perfect sense," former USCIS Director León Rodríguez said at the time. "It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families."
Sai had moved to the United States from India nearly eight years earlier with her husband, an IT professional for a multinational corporation. During the years she was unable to work, Sai said she grew depressed. She has a master's degree in microbiology, and back home, she and her husband earned the same amount. When the new rule was announced, Sai jumped at the opportunity to go back to work and became part of the first generation of H-4 visa holders to receive a work authorization.
"It felt really good," she said of reentering the workforce. "I got a lot of offers."
But just two years later, almost as soon as President Trump took office, his administration began signaling that it intended to rescind the rule. In 2019, his administration started that process, but has since failed to get approval from the Office of Management and Budget to make such a change.
That didn't stop the administration from implementing a new hurdle for H-4 visa holders. In March 2019, USCIS began requiring that all applicants for extensions get fingerprinted. In the past, women like Sai could pay for premium processing and have their extensions processed in under 15 days along with their spouses' H-1Bs. But the fingerprinting requirement changed things. Now, the administration said merely scheduling an appointment to get fingerprinted could take 17 days, meaning H-1B extensions and H-4 extensions would have to be processed separately.
"We will strive to adjudicate … applications as quickly as possible going forward, though adjudication within 15 calendar days is not possible," USCIS wrote in a summary of a teleconference on the new requirements in 2019.
This change not only meant that H-4 extensions would be moved from premium processing into the slow lane, but it also meant that approval times would vary substantially depending on which USCIS processing center happened to be handling the request. At the California processing center, where Sai's application was adjudicated, the current processing time for extension of H-4 visas is 7 1/2 to 9 1/2 months. In Texas, it's six to eight.
Applicants can't lodge a complaint with USCIS until their processing times exceed those windows. But processing times are subject to change, creating a moving target for anyone seeking a remedy from the agency.
In a statement to Protocol, a USCIS spokesperson said the agency processes applications in the order they are filed. "USCIS officers work diligently to adjudicate these applications fairly and efficiently, while ensuring that eligibility has been established," the spokesperson said. "USCIS cannot comment further on the processing times for H-4 applications and any associated EAD applications because of ongoing litigation."
Unable to advance their complaints with the agency, some have turned to the courts. Gayatri, another plaintiff in one of the cases against USCIS, lost her job as a data analyst for a Virginia state agency at the end of January. It was her fourth time extending her visa since moving to the U.S. from India in 2008 and the only time the processing time had taken more than a few weeks. Gayatri said she wrote letters to her senators and members of Congress and obtained letters from her own employer pleading with USCIS to expedite her case, but to no avail. The day her visa expired and she handed in her laptop, Gayatri said she broke down crying.
"Do you know how much hard work I did to get that job?" she said. "It's not just about the money. I was in the workplace. I studied a lot. I did my master's in India. Now, I'm sitting at home."
Gayatri says she found out about the lawsuits against USCIS in an online discussion forum for people tracking the status of their visas and decided to reach out.
Since June 2019, her attorney, Wasden, has filed nearly two dozen lawsuits involving H-4 visa holders in partnership with Steven Brown, a Houston-based immigration attorney at the firm Reddy & Neumann. In their complaints, the plaintiffs charge USCIS with violating the Administrative Procedures Act, which prohibits unreasonable delays of agency decisions.
But no judge has upheld or shot down that argument, because in case after case, USCIS has rushed to approve all of the plaintiffs' applications before a hearing is scheduled. That, or they've filed what Wasden calls "delaying and harassing" motions to dismiss the case or sever plaintiffs off into their own, individual cases.
"They're leveraging the whole power of the U.S. government to screw with people," Wasden said. He is also bringing a series of mass litigation cases against USCIS on behalf of tech companies, IT industry associations, and H-1B visa holders who say their visa extensions have been arbitrarily rejected, approved for unreasonably short periods of time, or, in the most egregious examples, approved for windows of time that have already passed. One of Wasden's clients in those cases inexplicably received a one-day extension on an H-1B visa, but it was granted six days after he could have used it.
"The agency's goal right now is just to kill legal immigration. They want to do as much damage as they can in their four to eight years as possible," he said.
The women who spoke with Protocol about their H-4 visa issues share much the same view. Divya, a Houston-based IT professional whose visa expires next month, says she feels like she's being forced to pay thousands of dollars in legal fees to get USCIS to do its job. "That's what's really frustrating for us. They're going to eventually approve it. But they're delaying it for no reason," she said.
Gayatri echos that sentiment. "They're waiting as long as they can until we lose our jobs, until our expiration date comes," she said. "That is their intention."
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Indeed, about two months after Sai lost her job in Arkansas and one month after Gayatri lost hers in Virginia, USCIS approved visa extensions and work authorizations for both women. In an email to Protocol, Sai said she was "so excited to share the news" and described the outcome as "a happy ending."
Gayatri was less enthusiastic. "My employment authorization got approved yesterday, but what is the use?" she said. She was already out of work.
Correction on 3/3/20: An earlier version of this story misspelled the name of law firm Reddy & Neumann.