Excerpted From: Isha Vazirani, Mistreatment and Exploitation of Skilled Foreign Workers Through H-visa Precarity, 74 Hastings Law Journal 583 (February, 2023) (153 Footnotes) (Full Document


IshaVaziraniIn 2015, the Department of Homeland Security (DHS) enacted the H-4 EAD program, which allows spouses of H-1B nonimmigrants with immigrant intent to obtain authorization to work pursuant to an Employment Authorization Document (EAD) issued separately from their H-4 visa status. The program has the potential to improve the lives of numerous H-4 dependents, the overwhelming majority of whom were women from the Global South, while also preying upon their labor and placing them within the context of a racist, exploitative system of skilled immigration into the United States. The Trump Administration threatened the H-4 EAD in what appears to have been an effort to slow the immigration of skilled workers into the United States. Without officially rescinding the rule enacting the H-4 EAD, DHS under Trump made changes to the EAD adjudication process that made it difficult for H-4 spouses of H-1B workers to maintain employment. Those changes prompted several lawsuits by nonimmigrant plaintiffs against DHS with mixed results. While gaps in work authorization among H-4 EAD holders are no longer a matter of course, and while the Trump Administration's proposed rule to revoke the H-4 EAD has been withdrawn, measures allowing for such a program have never been codified and can therefore be easily changed.

In this Note, I argue that the system of skilled immigration into the United States subjects workers from the Global South to precarity and exploitation due to their transient nonimmigrant status, increased employer control over nonimmigrant workers' immigration status, and potential for wage theft. In addition, the government's recent actions slowing H-4 EAD adjudication and the fact that the H-4 EAD has not been codified opens up H-4 EAD holders to further mistreatment within an already exploitative system. While the government's recent actions have affected numerous visa categories, this Note primarily focuses on H- nonimmigrants under the H-1B and H-4 visa categories.

H-1B status is temporary and dependent on employment. The visa category itself fails to provide a path to citizenship, indicating a focus on productivity rather than stability for H-1B workers and their families. Additionally, requiring employers to petition for H-1B status on behalf of their employees gives employers immense control over the validity of their employees' immigration status and discourages workers from seeking recourse against potential abuse. Furthermore, H-4 spouses of H-1B workers eligible for an EAD have seen their ability to work in the United States threatened, delayed, and effectively invalidated by changes to DHS's adjudication processes, subjecting them to heightened personal and professional instability. Litigation against DHS following these changes brought some relief to the H-4 EAD population. Still, the program must be protected through codification to protect EAD holders from further future vulnerability.

Mistreatment of skilled foreign workers is firmly established within the H-1B and H-4 EAD programs. Part I of this Note examines how the H-4 EAD program perpetuates the abuse of skilled foreign workers by discussing the H-1B category in Part I.A, the H-4 and H-4 EAD programs in Part I.B, and Save Jobs USA v. United States Department of Homeland Security, the lawsuit filed by American IT workers in response to the rule enacting the H-4 EAD, in Part I.C. Part II discusses subsequent threats to the H-4 EAD under the Trump Administration, and Part III focuses on the legal resistance to those threats. Part IV then explores the need to protect the H-4 EAD from future threats through codification, as well as the strengths and weaknesses of past proposals to codify the program.

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The system of skilled immigration into the United States has allowed for the mistreatment of numerous foreign workers, many of whom are from the Global South, and whose immigration status leaves them uniquely vulnerable and unlikely to formally complain about instances of mistreatment. The H-1B is especially sought after and forms the basis for the recently threatened H-4 EAD; yet it allows for the mistreatment of skilled foreign workers through its temporariness, the control it grants employers, and the potential for wage theft. The H-4 EAD has recently been effectively revoked; while a settlement allowed EAD holders to access the immigration benefits that had been withheld, the program remains vulnerable without codification. These layers of abuse uniquely affect skilled foreign workers and their families from the Global South and must be addressed in order to create a just system of immigration in the United States.


J.D. Candidate 2023, University of California College of the Law, San Francisco (formerly UC Hastings); Articles Editor, Hastings Law Journal.