Month: February 2019

On Wednesday, the Trump administration’s proposed rule for eliminating the H-4 EAD was submitted to the Office of Management and Budget (OMB) for review.  The administration had previously published an agenda item in December of 2017 titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization, indicating their intent to remove the current H-4 employment authorization document (EAD) rule that has been in place since 2015.

The Obama administration created the H-4 EAD program to allow the spouses of certain H-1B skilled workers to be employed while in the U.S.  The H-4 EAD has been particularly important for families that are awaiting approval for permanent residency.  Without the H-4 EAD, these dependent spouses cannot work in the U.S. until they receive green cards, a process which can often take many years, especially for immigrants from countries like India and China that send a lot of high-skilled talent to the U.S.  Since the rule went into effect, more than 90,000 spouses have been approved for work permits.  More than 90 percent of those who would be affected by the removal of the program are women.

Once the OMB reviews the proposed rule, it will be published in the Federal Register.   Upon publishing, a comment period occurs after which the administration must review the comments and make any necessary revisions before the rule is finalized.  Litigation could potentially delay the rule for months or years longer.  The proposed rule has not escaped the attention of Congress where a bill was introduced in the House of Representatives called the “H-4 Employment Protection Act of 2018” (H.R.7150) which seeks to protect the program.

A federal district judge in Seattle has ordered the Defense Department to stop discriminating against naturalized citizens who volunteered to serve in the U.S. Army under the Military Accessions Vital to the National Interest (MAVNI) program. The MAVNI program was created in 2009 to attract immigrants with specialized skills such as critical foreign language skills or specialized healthcare training in exchange for an accelerated path to citizenship.  NPR’s Richard Gonzales reports that “[m]ore than 10,000 soldiers have served in the U.S. military through the MAVNI program.”

However, the program was frozen in 2016 due to security concerns. The Department of Defense has required MAVNI participants to undergo “continuous monitoring” which includes security checks every two years, even after discharge if the participants worked for the government or government contractors. No person affiliated with the DoD, other than MAVNI participants, was required to undergo such checks absent particularized suspicion.

The plaintiffs, 17 naturalized citizens who enlisted through the MAVNI program, argued that the increased scrutiny represented unconstitutional discrimination based on national origin. The Pentagon argued that the ongoing security checks were necessary for national security and that they were not based on the plaintiff’s national origin, but on the manner in which they enlisted into the Army.

Judge Thomas Zilly noted however, that the “defendant’s witnesses acknowledged that no MAVNI soldier who has become a naturalized citizen has ever been charged or convicted of espionage or any other criminal offense or been denaturalized.” Judge Zilly found that the evidence in the case “shows that the DoD was aware of the equal protection violations that would arise if naturalized MAVNI soldiers were treated differently from other citizens, but it nevertheless persisted in the discrimination.”