H-1B News: Some H-4s to Get Automatic Approval, Reports the Indian Press

By David North on December 14, 2021

A class of alien workers who used to have to apply for work permits will now get them automatically; this has been reported in the Indian press, but not, to my knowledge, in the American media until just now.

This is a subset of the H-4 workers, most of whom are Indian women married to Indian men with H-1Bs whose employers have (and this is significant) filed green card applications for them but the green cards have not yet been issued. The Indian reporting does not cover this selective part of the story.

Did the feds announce a new set of regulations to bring about this change? Not that I have noticed. But the ever-interested Economic Times (Mumbai) has learned that USCIS has settled a friendly lawsuit against it brought by the American Immigration Lawyers Association (AILA), which said that employment authorization document applications for the H-4s were being processed too slowly.

The Economic Times reported that a total of 90,000 H-4 visa holders have already secured these work permits.

I estimate that there are about 800,000 to 900,000 H-1B workers in the country, mostly working for Indian-controlled body shops, and mostly recruited from among young Hindu men in the southern part of that nation. For more on the various kinds of discrimination (national origin, regional origin in India, gender, and age) practiced by these employers, see here.

A relaxation of a migrant-screening process is usually to be criticized for its open-borders implications, but in this case, it is not the end of the world. First, the ruling does not increase the population of the U.S. — these aliens are already here and in many cases have been for years. Second, it does not give anyone a chance to start the chain migration process — it is a work permit, not a green card.

Third, the H-4s are the least troublesome of the foreign workforces. Their work permits do not put them under the thumb of an employer who caused their admission, so employers cannot threaten them with deportation. Further, unlike most other foreign workforces, they are not concentrated by industry and, unlike those in the H-2A (farmworker) and OPT (recent alien college graduates) programs, they are not subsidized by letting their employers avoid payroll taxes.

They are, I must admit, an addition to the labor force, and to some extent, they tend to loosen what is otherwise a tight labor market. That part is unattractive.

One of the ironies is that this is a largely female workforce that has all the rights of U.S. citizens in the labor market. And though most of them are from sexist India, these individual women have job market rights here that are denied to their own husbands — the women are not indentured workers.

No immigration lawyer arguing for the H-4s would make these points, as they would put the rest of the foreign worker programs (appropriately) in a bad light.

Second Surrender to a “Friendly” H-1B Lawsuit. While one typically thinks of lawsuits as confrontations between adversaries, this is not always true, as I explained in a post some 10 years ago regarding a Bracero-era lawsuit. Sometimes an outside group sues the government to get it to do what the government (quietly) wants to do. Then the government conducts a cozy negotiation with the plaintiffs and comes up with a policy that the government really likes but could not implement without the “pressure” of a lawsuit. This is often called "sue-and-settle".

It looks like the H-4 capitulation falls into that category.

Meanwhile, dealing with the spouses of the H-4s, the H-1Bs, the government seems to have adopted the same strategy, again quietly surrendering on another H-1B issue.

Late in the Trump presidency, the Department of Homeland Security announced that it was planning to replace the traditional lottery system used when there are more H-1B applications than slots with an auction system. This would make the whole system more expensive for employers, who might be encouraged to hire citizen workers; seemingly good news.

That system never went into effect, being blocked by immigration lawyers suing on behalf of the employers. At first, the Biden administration supported the reform, and then, quietly and more recently it agreed with its opponents to postpone action in court on the grounds that the government was negotiating with the employers, predicting a settlement with them.

This was in the Ninth Circuit; the case is Chamber of Commerce, et al v. U.S. Department of Homeland Security, Case 21-16912, 11/30/2021, ID:12300713 in the PACER files. I have seen no media reporting on this move.

Bloomberg Misses the Point on Reduction in H-1B Applications. The headline in the Bloomberg News article “The Number of Immigrant Workers With H-1B Visas Drops the Most in a Decade” is largely correct, but the news agency should know by now that H-1Bs are nonimmigrants and not actual immigrants, i.e. permanent resident aliens.

My problem with the article is its fuzzy and incorrect explanation of the decrease in the number of applications; it said “the drop was largely due to a significant slowdown in visa processing during lockdowns and tightened immigration policies stemming from the pandemic, according to immigration lawyers and experts.”

No. While the admissions of H-1Bs undoubtedly dipped for these reasons, the subject of the article was the decline in applications, a totally different matter. The first is a count of people arriving with these visas and the second is a tally of pieces of paper filed earlier in the process.

The Bloomberg explanation of the decline would lead one to believe that the nasty old government was responsible for the decrease, and implies that the decline had nothing to do with either a lessening interest in the program or misbehavior on the part of the employers, which turn out to be major factors carefully not mentioned by “immigration lawyers and experts”.

As we noted recently, in many cases employers file more applications than their real needs in an effort to game the lottery; then, once the lottery winners are announced, the winning employers either change their minds about wanting those workers or are caught filing phony applications.

The situation, Bloomberg writers, is more complex and industry behavior far less laudable than you perceive.

Trivia. Corporations in trouble for other reasons sometimes show up as H-1B users as well. Today’s example is Theranos, whose young founder, Elizabeth Holmes, is on trial for defrauding investors, from Henry Kissinger on down. The Myvisajobs website shows that in 2018 the firm secured 15 H-1B approvals, withdrawing three of them. The average salaries of about $128,000 were not bad, however.