Last year, U.S. President Donald Trump issued an executive order putting into force “Buy American and Hire American” as a policy. The order proposed to impose stricter scrutiny on the H-1B visa program.
The H-1B program, around since the 1990s, has allowed temporary workers in “specialty occupations,” mostly in the STEM (science, technology, engineering and math) fields, to work in the United States.
Trump’s executive order also proposed to revoke a ruling by former President Barack Obama that granted employment authorization documents (EAD) to the spouses of H-1B workers who hold H-4 visas, popularly known as dependent visas.
In a letter dated April 4, 2018, to the head of the U.S. Senate’s judiciary committee, the director of U.S. Citizenship and Immigration Services (USCIS) confirmed that the implementation of Trump’s executive order will specifically target the H-1B program and EADs for H-4 visa holders.
The implications are stark. Trump’s move disproportionately affects people of colour and women, given that more than half of the H-1B and H-4 visas go to South Asian and Chinese families.
My own research over the past eight years has shown that visa policies have lasting imprints on the lives of H-1B and H-4 visa holders in the workplace, civil society and in families. The worst hit are highly qualified women — the primary recipients of the spousal-dependent visas.
While the USCIS letter has left thousands of families in uncertainty and panic, the implementation of Trump’s executive order also has the potential to harm American competitiveness in the global economy.
The history of skilled worker migration to U.S.
Historically, until 1965, immigrants of colour had restricted entry to the United States. Racialized laws were passed to preserve whiteness as the identity of the American nation.
The landmark 1965 Immigration Act removed national origin quotas. It allowed specific numbers of immigrants from around the world to enter the U.S. each year for family reunification and employment.
Employment-based immigration received a boost in the 1990 due to the tech industry boom and the Immigration Act of 1990. The act introduced the distinctive category of the non-immigrant H-1B visa for temporary workers with specialized skills, and the H-4 visa for dependent spouses and children of these workers.
H-1B visas also provide pathways for legal permanent residency, popularly called the Green Card, though the number of visas offered each year remains capped.
American borders have become friendlier for legal immigrants of colour. But the circumstances after migration are less than ideal. Temporary workers on H-1B, due to the precarity of their legal status, experience exploitation at work.
Most Indian H-1B workers have to wait much longer for a Green Card compared to similar applicants from other countries due to USCIS processing backlogs, exacerbated by a higher number of Indian applicants for employment-based permanent residency.
Added to this, until 2015, spouses of H-1B workers were denied the right to work legally or hold any independent identity. This created households that looked like 1950s-era nuclear families. It forced one spouse, usually the woman, to stay home, creating deeply gendered households.
The dependent visa law is reminiscent of the 18th and 19th century coverture doctrine that provided husbands unfettered state-sanctioned power over their wives. The implications of the dependent H-4 visa law are grim for the families and individuals who hold this visa.
25 years of dependence
From 1990 to 2015, those coming to the U.S. on H-4 dependent visas were denied the right to work and forced to be economically dependent on their H-1B spouses.
The Green Card application backlog made matters worse. Many H-4 spouses waited 15 to 20 years for their Green Cards, which then allowed them to work legally. The wives on H-4 visas I interviewed for my research were all highly qualified, often more so than their husbands.
The inability to work legally left many of the women chronically depressed. They experienced loss of dignity and self-esteem. Some even contemplated suicide. In situations of domestic violence, these women found themselves with no support. Some women described these visas as “prison visas” or “vegetable visas” as they navigated their dependence.
However, the most befuddling to them was one question: Why was the U.S. failing to recognize the waste of human capital the H-4 visa holders collectively possessed?
Promise and hope of the Obama era
In 2015, Obama responded to research and a spurt of online activismaround the issue of legal dependence. He signed an executive order that made it possible for H-4 visa holders to obtain EADs after they’d been approved for permanent residency.
His order left some H-4 visa holders without permanent residency approval stranded. But it did have a positive impact on the lives of 179,600 spouses that year, and 55,000 additional spouses in subsequent years, as estimated by the USCIS.
Many H-4 visas holders attempted to return to work. Some with specialized degrees found work quickly. Others found it difficult to find work, as is common for women with a long employment hiatus. However, what was important was that they now had the opportunity to look for work legally.
Trump’s reversal of hope
Trump’s protectionist policy has been met with protests and appeals both by H-4 EAD advocacy groups and the global tech industry. However, Trump’s stance remains inconsistent — on one hand he’s supporting merit-based immigration, on the other he’s clamping down on the H-1B program.
This has left H-1B workers and their spouses in a lurch. Many H-1B families living in the U.S. for years are now planning to return to their native countries or to move to countries like Canada with less draconian immigration laws. Very soon, the U.S. labour markets will struggle to find eligible workers.
Taking away the right to work from immigrants strips them off their human dignity. It tells them they are less than human just because they were not born in America.
Immigrants of colour are becoming fearful of living in and migrating to the United States. This will ultimately hurt the American economy and the United States as a nation — a country that was built on the backs of immigrants.