H4 Visa EAD The Reality.

H4 VISA EAD –ILLOGICAL DREAM

Recently,There were some Discussion related to  EAD for  H4 and listed below are the details related to it from web..

USCIS initiated the rule-making process for this proposed regulation almost a year ago. Along the way, this rule-making process faced Senate's Comprehensive Immigration Reform S. 744 legislation process which also provided for the H-4 employment authorization in the context that conflicted with the USCIS proposed rule. Obviously, USCIS initiated the process because it had arrived at a conclusion that no legislation was necessary and the issue could be handled in a matter of "administrative fix" through rule-making process. 

There are some fundamental flaws in the proposed rule and that would be the reason why Law Makers never implemented it before and probably it would never get implemented...Reason listed below..

The H-1B visa is a non-immigrant visa that allows business professionals to work in the United States for a specific amount of time. The purpose of the H-1B visa is to give U.S. employers the opportunity to hire foreign professionals if a U.S. citizen or resident is not available. In order for the H-1B visa to be issued, both the employer and employee must satisfy specific requirements.

Employer Requirements:

• The job offer must be in a specialty occupation such as architecture, engineering, mathematics, etc.
• There are criteria for wages offered and the actual job performed
• No U.S. citizen or resident must be available for the job
• The petition must be submitted by the company (not the employee)

Employee Requirements:

• A Bachelor degree
• Specialized skill
• Speak and read English
• H-1B visas are issued for a maximum of 6 years

H-1B visas are issued for a maximum of 6 years and the annual limit is around 65K. Most of these Visas are used by Technology Company and this visa was created with Some Specific Thinking/Planning.

Also one of the requirements was to make sure that when there is shortage of Citizen or Residents available for the job, then only H1B resource needs to be availed.

The H-1B program is criticized from different perspectives. The wages are kept lower in certain H-1B related industries as foreigners will accept a lower wage for the opportunity to work in the United States. Foreigners cannot easily change job in comparison to a U.S. citizen or resident, which makes an H-1B worker attractive for many employers. Several universities offering higher IT degrees are criticized for bringing in many foreign nationals for the purpose of educating them to H-1B jobs thus discouraging citizens and residents from choosing such degree programs.

• ·          Most of the H1B spouses  are educated (at least Graduate) .If H4 visa holders [default spouse visa of H1B visa holder] are provided EAD, how can the above rule be made applicable to them. They could take Jobs at lower wage and nullify the above rule.
• ·         The quota of 65,000 H1B visa would actually mean 130,000 Jobs annually.
• ·         Even though there are strict restrictions for a H1B visa holder, it would be easy for a H4 spouse to get a Job in US.
• ·         H4 EAD would be more attractive & Lucrative, since there is no Employer restriction, Wage Restriction or workplace/Client Place restriction. Even a Person with EAD could take multiple Jobs. It could also lead to a scenario where a H1B does Part time job on a Spouse EAD card…
• ·         Cases where both Spouses have H1-B would make no sense. Since it would be better for one of them to be on H4 EAD.
• ·         H1B resource have to work only at the petitioned city..Whereas the H4 spouse could work anywhere.
• ·         Under the new CIR, there would be a restriction for H1B visa holder to work at client site.H4 EAD could work anywhere..??
• ·         A H1B resource will take any Job as long as the Spouse is comfortable working on a Lucrative EAD.A H4 EAD would be more in demand than a H1B and it would have less headache for an Employer to hire a H4 EAD compared to H1B.
• ·         There would be huge demand to get married to a H1B visa Holder and to avail work permit in US. Some H1B resource would also take this opportunity to get married every alternate year and give opportunity to vulnerable ones..
• ·         L1 is an Intra company Visa and it makes sense to allow their spouse to get EAD. L1 visa holder cannot change Job and needs to have H1B visa incase of moving to a new Job.In such scenarios L2 EAD would become invalid.L1 visa needs be made Strictly for Genuine Intra Company transfer and not as an alternate to H1B visa.
• ·         Most of the H1B visa Holder have taken the Long route of  Applying for GC [through a Sponsoring Company] and sticking to the Petitioning  Employer and mostly going through prolonged Unhappy period to ultimately get EAD and GC.  H4 EAD would make them similar to a GC holder and compete with them in the Employment Market.
• ·         It will become very common where IT consultancy companies will hire H4 visa holder who have received EAD and fudge their resume for getting into IT Jobs which again will eats up Genuine Candidates prospects.
• ·         IT Consultancy companies would Greatly benefit by hiring these H4 EAD and also save a lot on Dollars  by avoiding H1 b Transfer fee and wait time and wage restriction etc…

·         One observation would be if Illegal Immigrants [who have been living in US for more than a decade or are living in US from childhood ]  can get EAD..then why not H4. Most of the "Illegal" Immigrants are into Low end Jobs and they are already getting resistance from Residents working on those low end jobs. Also most Illegal Immigrants are in the below Poverty section of society.Depriving them would mean more exploitation and degradation of society.

               Ideally H4 Visa holder should apply for H1B if they want to work in specialized areas.H4 visa holders could be given EAD which only authorizes them to take job in certain Industry/field of work (i.e Art / Social Work /Teaching etc). Also Subsidized education should be allowed for H4 visa holder and provision should be made wherein a H4 would be able to  apply for a  valid Work Permit (i.e H1 etc.. ) after acquiring necessary degree.

The Law makers would be thinking on similar lines before making any amendments to the proposed law (i.e  “administrative fix”).