Thousands of Bay Area workers, mostly women from India and many working in tech, can breathe a sigh of relief after a court ruling upheld their right to employment. But the case affecting spouses of H-1B visa holders and Silicon Valley’s technology industry may still end up before the U.S. Supreme Court.
A decision Friday by the U.S. Court of Appeals for the District of Columbia puts a cap — at least for now — on a years-long court battle over work authorization for the wives and husbands of H-1B workers who have been allowed to work since 2015 if their spouses are on track for a green card.
Two months after the right to work was granted in 2015 to holders of the H-4 visa — a residence permit for spouses of people on the H-1B skilled-worker visa — a group of tech workers sued the federal government, claiming the employment authorization illegally and unfairly forced them to compete for jobs against noncitizens.
Friday’s ruling by the D.C. panel upheld a lower-court decision maintaining H-4 employment rights.
“We want to be here working and supporting our families,” said business systems analyst Mebi Babu, of San Ramon. “I’ve been living with this uncertainty for the past eight years.”
John Miano, a lawyer representing the tech workers group suing as “Save Jobs USA,” said the appeals-court ruling failed to address the crucial issue in the case: whether the U.S. Department of Homeland Security, which allowed H-4 employment, had legal authority to do that.
“If this stays in place, (Homeland Security) can allow anything,” Miano said Monday. “We now have a separate immigration system being created by the administrative state.
“The courts are now allied with big business to wipe out the protections for U.S. workers in the immigration system.”
Miano said he planned to petition the court to re-hear the case, and if that fails, the tech workers will appeal to the U.S. Supreme Court.
The importance of the court fight to Silicon Valley’s major tech companies was emphasized when Google, Apple, Cisco, HP, Intel, Salesforce and the former Twitter made the unusual move to urge the court hearing the case in 2021 to let the estimated 90,000 H-4 workers continue to work in the U.S. The majority of those workers are believed to be employed in Silicon Valley.
“This ruling is good news for thousands of families in the United States, including some of our own employees,” said Google lawyer Halimah DeLaine Prado. “We are proud to have led a broad coalition of companies supporting families in this proceeding. We’ll continue to advocate in support of our employees and their families and we continue to urge Congress to pass comprehensive immigration reform to help keep the U.S. economically competitive.”
The H-4 visa, like the H-1B intended for workers with specialized skills, has been caught up in America’s debate over immigration. Cases of U.S. workers being replaced by H-1B visa holders — as was alleged in the Save Jobs USA lawsuit — have complicated the future of employment for H-4 holders, as have abuses by staffing and outsourcing companies. Adding to the difficulties are extremely long waits for the green cards that allow H-1B and H-4 holders to get off visas and become permanent residents.
“You can’t really expect people to be sitting at home for 20 years,” said Pratima Joglekar, an assistant in an immigration-law firm, who lives in Fremont and obtained her green card in December after seven years on the H-4. “It took me 14 years to get my green card. It took my husband 19 years.”
Joglekar, a local leader of an advocacy group pushing to preserve the H-4 work authorization, said letting the visa holders work boosts the economy. “People earn money — they put the money into the economy in different ways, either by purchasing things or paying for their families,” said Joglekar, 39.
The Save Jobs case was tossed out in March 2023 by District of Columbia U.S. District Court Judge Tanya Chutkan, who cited the federal Immigration and Nationality Act, along with “decades of executive-branch practice, and both explicit and implicit congressional ratification of that practice.”
Miano argues that Congress has never actually approved employment for H-4 holders, which came via federal rule-making. He sees the court decisions in the Save Jobs case as a distortion of America’s system of checks and balances.
“You strip the power from Congress and hand it to bureaucrats,” Miano said. “We have the courts acting to strip democracy from the American people.”
Many H-4 holders would like to see Congress act to ensure they can work. Employers are often reluctant to hire them because their right to employment — also jeopardized by former President Donald Trump, who vowed to take it away — is uncertain, said Babu, 40. Employment brings not only more financial stability, and often health insurance, but also financial independence, and confidence, Babu said. Speeding up the green card process would solve the underlying issue, Babu added.
Trump’s pledge to strip the right to work from H-4 holders was never carried out, but they worry that should he win the presidency again, they will lose employment authorization.
“It scares me a lot,” said Babu, whose husband also works in tech. “I’m pretty sure we’d have to leave California — it’s so expensive here.”
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