HOUSTON – Living in limbo is a continued in-depth series by KPRC 2 that delves into the immigration challenges faced by hundreds of thousands of Indian women in the United States. This series was made possible by a fellowship grant from the South Asian Journalists Association’s SAJA Reporting Fellowship Program. Read the next parts of the series here.
More than 100,000 Indian women in the United States, many living in the Greater Houston area, stand to lose the ability to work if President Donald Trump’s administration moves forward with a plan to do away with their work authorization. The rule change, currently being considered by the Department of Homeland Security, would strip work authorization for some people living in the U.S. on an H-4 visa.
While no subject polarizes voters quite like immigration, the fate of South Asian workers, who make up a large part of the Greater Houston area popular, has largely escaped notice. At stake is the ability of thousands of women, born in India but now legal Texas residents, to work as doctors and teachers, executives and engineers.
“Many of these workers are very well-educated women who are independent, who are smart, can contribute in so many different ways to our society and our communities, who will be stagnating otherwise,” said Niyati Shah, head of litigation with advocacy group Asian Americans Advancing Justice.
One former Houston resident says just the threat of losing her work authorization made it difficult for her to find an employer willing to hire her.
“Even when the interviews went well, because of this (uncertainty), I was not getting through to the last rounds (of interviews),” said Kalyani Phadke. When an arranged marriage brought Phadke to Houston at 23, she worked on achieving her dreams -- first to get her Master’s degree from the University of Houston-Clear Lake, and then to get a job with a good tech company. If the rule change indeed goes through, everything she worked for will come to a screeching halt for at least several years.
Immigration was one of the key talking points during the 2016 election and this year promises to be no different. With the coronavirus pandemic upending most aspects of normal life, immigration once again became spotlighted when President Donald Trump signed an executive order in late April, temporarily suspending some immigration to safeguard American jobs. Politico reports that the order was not well-received by Conservatives but if it remains in place through Fall, Trump could make immigration a centerpiece of his 2020 campaign as he did four years ago.
“People want you to wear hats. One side is wearing a hat that says ‘Build The Wall,’ the other side is wearing a hat that says ‘Abolish ICE,’” said congressional candidate Sri Preston Kulkarni, describing the national narrative surrounding immigration during an election year. “There’s not room for a nuanced discussion.”
Kulkarni is a Democrat and ex-foreign service officer from Fort Bend County hoping to steal the GOP-controlled District 22 seat, soon to be vacated by Rep. Pete Olson after nearly 12 years.
In 2017, more than 1 in 4 residents of Fort Bend County were born in a different country and the second most common country of origin -- after Mexico -- was India. Harris County has a similar demographic breakdown with nearly a third of the population being foreign-born.
What is the H-4 visa?
When highly-skilled people come to the United States for work, it is often on a visa called H-1B. Under this visa status, they are considered temporary, non-immigrant workers. Their visa is valid for up to three years and if they want to continue working in the United States, they have to apply for extensions.
Among the challenges they face, H-1B visa holders have to get an employer who is willing to sponsor their visa and face a lottery system that only grants a set number of visas each year. If the worker’s spouse and children move here as well, they are granted a dependent visa called H-4 which is more restrictive. On this visa, spouses and children can study but not work.
Between 1997 and 2017, the U.S. government issued more than 1.7 million H-4 visas with more than a million were issued to people from India.
The rules are so tight, that even if a person on an H-4 visa chose to volunteer their time and skills to a company for no pay, they would not be allowed to if they could get paid for the work. This rule has caused so much confusion that one immigration law firm wrote an explanation for women trying to legally stay occupied.
Losing the ability to work has been a deterrent for highly-skilled immigrant families from moving or staying in the United States. Many choose to move to other countries where the rules are not as tight.
“Married couples, for the most part, like to be together. Maybe not all day long, but they like to be together,” quipped Democratic Congresswoman Anna Eschoo of California. “It doesn’t make any sense to say one spouse can come in, the other spouse can accompany the spouse but only one of them can work.”
After years of advocacy by women’s rights groups, the Obama administration introduced an Employment Authorization Document (EAD) in 2015, opening up employment for some people on the H-4 visa. However, it is not available to everyone in that visa category.
Only H-4 visa holders whose spouses have applied for and have been accepted to become permanent residents of the U.S. can apply for work authorization.
This means the H-1B visa holder’s employer has to fill out an I-140 petition asking the U.S government to allow that employee to be able to work in the U.S. on a permanent basis. If the I-140 application is accepted, the immigrant is one step closer to getting a Green Card and their spouse can apply for authorization to start working.
But that isn’t the end of the road for many families.
The U.S. government issues about a million Green Cards each year and a small fraction is allocated for people applying for an employment-based Green Card. There is also a 7% cap on Green Cards issued per country. Once the cap is reached, the rest of the applications get pushed to the next year, creating a backlog for applications from specific countries.
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The highest number of employment-based Green Card applications are made by people from two countries — India and China.
The backlogs for processing employment-based Green Cards for Indian and Chinese people are currently between five to ten years and by some estimates as high as 50 years.
Employment authorization documents were introduced for H-4 visa holders so they would be able to work while they wait in line, often for several years, to get a Green Card.
“(Five to 8 years is) a significant period of time to be living in limbo, to not advance your career,” Shah said.
After it was introduced in 2015, the number of EAD applications has seen a gradual uptick each year as more people learn about the program and become eligible to apply. Most of these applicants are Indian women.
So far, 93% of the H-4 EAD applications have been made by women and about 91.8% of the applicants are Indian, according to USCIS.
Data source: USCIS
There was some opposition to allowing H-4 visa holders to work. Even before the 2015 rule was enacted, a group of American tech workers called Save Jobs USA, began fighting employment authorization for immigrant spouses.
Save Jobs USA claimed if H-4 visa holders were allowed to work, American workers, who already face competition from H-1B workers, would also face competition from H-4 visa holders as well.
In September 2016, the U.S. District Court of District of Columbia ruled in favor of the Department of Homeland Security and the H-4 EAD rule remained unaffected. Save Jobs USA continued to fight the case and in November 2019, the D.C. Circuit Court of Appeals reversed the District Court decision, in favor of Save Jobs USA.
The court concluded that Save Jobs USA had demonstrated that DHS’s H-4 EAD rule would subject its members to an actual or imminent increase in competition, and so the group has the standing to pursue its challenge. You can follow the progress of the Save Jobs USA vs. DHS case here.
New focus by a new administration
In April 2017, Trump signed an executive order calling on companies to “Buy American, Hire American.”
The goal of Trump’s executive order was to “create higher wages and employment rates for workers in the United States and to protect their economic interests.”
To fulfill the requirements of “Buy American, Hire American,” Trump asked the Secretary of State, Attorney General, Secretary of Labor and the Secretary of Homeland Security to propose new rules and issue new guidance that would protect the interests of American workers and combat immigration fraud.
Under the leadership of former Department of Homeland Security Secretary, Kristjen Nielsen, the department announced it will consider changing the rule that allows H-4 visa holders to apply for work authorization. Nielsen resigned in April 2019 and current Acting Secretary, Chad Wolf, has kept the rule change consideration on the agenda.
Since the 2017 executive order, DHS has repeatedly noted its intent to change the rule that allows H-4 visa holders to work. However, this has not yet happened. In the Fall 2019 Unified Agenda, the administration said it planned to roll out a rule change by March 2020.
As of May 2020, the new rule has not yet been made available for a 30-day public comment period. It is possible that the coronavirus pandemic may have thrown a wrench in the plans, as USCIS offices remain closed through June and services were moved entirely online.
With major rule changes promised by the Trump administration, advocates like Shah say foreign-born workers have been left in a precarious position that badly affects their family lives as much as it affects their professional lives.
“You’re putting everything on hold and are making constrained choices rather than making the best choice,” Shah said. “At the end of the day, it’s about women and it’s about their autonomy, their agency, about having the choice to do what is best for their future. Of course, it also impacts children to see their mothers thrive.”
The greater Houston and Dallas areas are among the top places with large Indian and Indian-American populations in the country, according to the U.S. Census Bureau.
“I have tons and tons of people living in my district (in Fort Bend County), who’ve been working for years here and are completely members of the community here, and through no fault of their own, they’re in this very precarious position, where they could be yanked at any time,” Kulkarni said.