H1B workers' spouses on H4 visas at crossroads as big decision looms on work permit.

Bracing for the next hit job on non-immigrant visas in the US? The H4 dependent visa is a prime candidate.

On the other side of the Christmas hols is a long pending decision on whether spouses of H1B workers are eligible for employment in the US or not.

The Obama government, in its penultimate year, passed a regulation (not a law) allowing work authorisation for people on H4 visas who by virtue of their spouses applying for a green card, could apply for a work permit. This was in 2015 and met with whoops of joy and relief across the Indian H4 community.

The long view: Beaten and bruised, H1B survives 365 days on Planet Trump

The H1B and H4 visa did not figure in official talks during the Trump-Modi meeting earlier this year/ AP
The H1B and H4 visa did not figure in official talks during the Trump-Modi meeting earlier this year/ AP
The resistance came quickly with groups opposed to the fundamental concept underpinning the H1B visas challenging the enhanced permits for the H4 visa in court. Save Jobs USA has been pushing the government to dial back the H4 work authorization and this is not a new demand. A district court judge struck down Save Jobs USA’s case in September 2016 but the political climate had undergone deep shifts by then as we now know from hindsight. Despite the court setback, the same group filed an appeal in less than 3 days coinciding with the stunning rise of Trump in America’s political scene. The decision in the ongoing Save Jobs USA versus Department of Homeland Security case holds the key to the immediate future of the H4 visa holders’ life and work in America.

The Trump administration has asked for time to review the Obama-era regulation through the lenses of the Buy American Hire American Executive Order which is also the first time the H1B visa figures in a Trump-led EO.

That’s shorthand for grim news to the limited context of the H4.

“The case is on hold but the outlook is not promising given the fact that the administration is not supporting the H4 rule being promulgaed by the Obama administration is not a good sign at all”, says ace immigration attorney Cyrus Mehta.

In case the decision goes against work permits for H4 visa holders, then it’s back to the pre 2015 years for these folks. Note that neither the H1B nor the H4 figured in the highest level talks between Teams Trump and Modi in June this year. This was a clearly thought out tack by the Indian side and the America view on it is brusque and crystal clear - "Our position is well known. It is under review so we have nothing more to say."

Both Trump and Attorney General Jeff Sessions’ overall negative positions on foreign guest worker programs remain highly popular with Trump's core vote bank - a group that erupts in wild cheers when the US President taps into the cultural fault lines split wide open by America’s swiftly changing social fabric.

Up until the summer of 2015, H4 visa holders could not legally hold paid employment in the United States. The fag end of the Obama years changed all that and was met with wild celebrations among Indians in the US. With Trump in office and the prospect of benign neglect to immigration red flags that marked the Obama presidency now gone, H-4s already have a lot to be edgy about even if nothing eventually changes.

Although the H-4 is not applicable to all H1-B workers’ dependants, it covers a lot of ground. Work authorisation for H4 covers dependent spouses of H-1B nonimmigrants on two conditions - the more crucial one being that the H1-B visa holder is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker which is an upgrade of the plain vanilla H1B under which an IT worker may have entered the US.