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Google leads Big Tech effort to ensure H-1B spouses can continue working in America

Coalition of 41 organizations oppose labor rule challenge

Google is spearheading an effort to save a visa rule that allows the spouses of H-1B visa holders awaiting green cards to work in the US.

On Friday, Google and 40 other companies and organizations filed an amicus brief supporting the Department of Homeland Security's (DHS) H-4 employment authorization document (H-4 EAD) program, which faces a legal challenge by a group called Save Jobs USA.

Save Jobs USA, an association representing Southern California Edison workers who claim they lost their jobs to H-1B visa holders, is suing DHS in a Washington, DC court to undo the rule.

H-4 visas are issued to the spouses and minor children of H-1B visa holders. And if the H-1B visa holder has been approved for residency but has not yet been granted a green card – a period potentially of many years – the DHS H-4 EAD rule allows spouses of those nonimmigrant future green card holders to lawfully seek employment by filing an employment authorization document.

If Save Jobs USA's legal challenge succeeds, an estimated 90,000 H-4 visa holders, more than 90 per cent of whom are women, will lose the right to work in the US, according to Google's court filing [PDF].

DHS adopted the rule [PDF] during the Obama administration in 2015 "to ameliorate certain disincentives for talented H-1B nonimmigrants to permanently remain in the United States and continue contributing to the US economy as [lawful permanent residents]. This is an important goal considering the contributions such individuals make to entrepreneurship and research and development, which are highly correlated with overall economic growth and job creation."

Hang on, even the Trump administration supported this

Save Jobs USA, formed to protect American workers from the ostensible economic impact of foreign labor competing for US jobs, argues that DHS exceeded its authority by adopting this rule.

The group challenged the DHS rule in 2015 and pursued the case throughout the Trump administration, which proposed removing the rule in 2017 but never went through with it. Unexpectedly in May 2020, the DHS under Trump asked the court to keep the rule, arguing that Save Jobs USA has not adequately demonstrated the claimed economic harm on American workers.

In their amicus brief, Google and its allies, including Amazon, Apple, Cisco, HP, IBM, Intel, Microsoft, Salesforce, SAP, and others ask the judge hearing the case to grant DHS summary judgement and dismiss Save Jobs USA's complaint.

"A judicial invalidation of work authorization for H-4 spouses would inflict severe harm on tens of thousands of H-4 spouses, along with their families," the amicus brief says. "The loss of employment authorization would result in lost income, leaving some families unable to pay their bills – a result that is already occurring at an alarming rate due to government delays in processing employment authorization paperwork."

People go where they are welcome

In a blog post, Catherine Lacavera, veep of legal at Google, argues America's economic success depends on its ability to attract top technical talent and that nixing the H-4 rule would add to the economic harm to women, already disportionately affected by pandemic employment pressure, and their families.

"If the program is lost, the practical effect is that we welcome a person to the US to work but we make it harder for their spouse to work," she said. "That hurts their family, impacts our ability to compete for talent, and harms our economy."

Separately, the US Department of Labor on Friday said it is delaying the effective date of the final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” a Trump administration rule affecting H-1B worker wage calculations has been opposed by the non-governmental US Chamber of Commerce. ®

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