Francis Cissna, director of U.S. Citizenship & Immigration Services recently noted that the agency still plans to phase out the grant of work permits to the spouses of nonimmigrant aliens working in the U.S. as H-1Bs. (The spouses are on H-4 visas.) Cissna's comments came in response to a letter from a group of California lawmakers objecting to the planned rollback of the Obama administration's 2015 decision to permit the H-4 spouses of H-1B workers to get jobs as well, even though this is not provided for in the statute.
One take on this decision is a masterpiece of public relations spin: "Women would be hit hardest by ending H-4 work permits". An excerpt:
Why it matters: Women will be disproportionately affected by the end of work authorization for certain H-4 visa holders — up to 84,935 of them could lose their jobs. Because there are fewer restrictions on the kind of employment H-4 workers can pursue than H-1B workers, these work visas have allowed for the promotion of women entrepreneurship and small business, Leon Fresco, and immigration lawyer who works with H-1B and H-4 holders, told Axios. [Underline added.]
This statement raises many questions. For instance, are women in fact entrepreneurs and small business owners, or does that just make for a good but unverifiable assertion to toss out to the media for thoughtless consumption? Consider that the person quoted is a member of the private immigration bar who makes his living helping his corporate clients, their H-1B employees, and their wives, get immigration benefits such as extensions and work authorizations. Does that sound like a good unbiased source?
But most importantly, consider this: if we deconstruct the fact that H-4 spouses are almost uniformly women, then what does that say about gender bias in the search for H-1B foreign workers on whom the H-4 visas are based?
Do the hiring and recruiting processes for H-1B workers conducted by huge third-party recruiters in third world nations – often India or China – systematically exclude women? My colleague David North has demonstrated this pretty conclusively. His findings appear to be mirrored others, including Human Rights Watch, which speaks of the systematic exclusion of women in the workplace and academia in China. Why would Chinese third-party recruiters working on behalf of American corporate clients use a different approach from that which prevails in China? Almost certainly they wouldn't. Alice de Jonge makes a similar point in "The Glass Ceiling in Chinese and Indian Boardrooms".
So please, let's not hear any more humbug about disenfranchising women. If you're concerned about that, then how about leveling the playing field in the granting of H-1B visas to women (so far as any H-1Bs at all are truly justifiable)? That should be the takeaway here.
But back to the Trump administration's decision to roll back the H-4 employment perk which led to the lawmakers' letter to Cissna. I find it deeply amusing that the letter comes from California's congressional delegation, given that even federal legislators from California – that recalcitrant bastion of neo-states' rights – have a kind of loose pick-and-choose approach to things like federal supremacy where immigration is concerned, and who have staunchly supported every lawsuit filed by the state and its entities against Trump administration policies.
Apparently California's members of Congress value their relationships with Silicon Valley and tech giants, who in turn deeply value their cheap foreign labor, more than they do their economically struggling constituents. The logic isn't hard to follow: keep the tech giants – those fertile grounds of campaign financing – happy, because they want to keep their cheap, plentiful supply of H-1Bs happy by letting their spouses work too.
As is obvious, I support the decision by USCIS to roll back the unprecedented grant of work permits to spouses of workers, many of whom owe their positions in the U.S. to shady or downright deceptive employment practices in the first place.
But I am unhappy that the "rollback" decision is like virtually every other immigration rollback in this administration: Each one is announced to take place months, sometimes years in the future, and yet which allows the administration to claim that something's been done. That's what it did with DACA, and the delay between announcement and effective date was long enough to permit a multiplicity of entities to engage in the kind of lawfare that has resulted in some fancy judicial footwork to prevent the administration shuttering the program. That's what it has also done with its announced "phase-outs" of Temporary Protected Status for various nationalities.
With such a pattern, one begins to wonder whether any of the rollbacks will ever actually happen, In this regard, it's instructive to remember that in 2017, when Congress authorized the DHS secretary to increase the H-2B visa cap (for unskilled non-farm workers), then-DHS secretary Kelly announced he would authorize a "one-time" increase, never to be repeated. And yet, when Congress pulled the same stunt this year via language buried in the Comprehensive Budget Act of 2018, Secretary Nielsen has suggested she will okay another increase.
I'm reminded of the Wimpy Maxim: "If you will give me a hamburger today, I will gladly pay you Tuesday." Except that the DHS maxim appears to be something that smacks of even more naivete: "I will gladly give you a hamburger today if you promise to pay me next Tuesday." Of course, Tuesday never comes.