Big Tech wades into legal fight over H-4 visas for spouses

Some of the biggest names in US tech are urging a federal court in Washington to reject a lawsuit seeking to eliminate work authorization for more than 90,000 H-4 visa holders., Apple, Google, Microsoft and more than 20 other firms say the H-4 visa is critical to a foreign couple’s decision to come to the United States, buy a home and raise children [File: John Locher/AP]

Big Tech is wading into a legal fight over visas to save the jobs of spouses of its foreign employees working in the U.S. Inc., Apple Inc., Google, Microsoft Corp. and more than 20 other companies and organizations, including the U.S. Chamber of Commerce, on Friday urged a federal court in Washington to reject a lawsuit seeking to eliminate work authorization for more than 90,000 H-4 visa holders.

Eliminating H-4 visas “would not only siphon off U.S. gross domestic product, but gift that productivity – and the innovation that comes with it – to other nations, harming America’s global economic competitiveness into the future,” the companies and organizations said in a brief the court can consider in weighing the case.

Under the Obama-era “H-4 Rule,” the U.S. Department of Homeland Security in 2015 issued visas to spouses, more than 90% of whom are women, of more than 580,000 highly skilled workers who live in the U.S. on H-1B visas, according to the companies’ filing. The H-4 visa is critical to a couple’s decision to come to the U.S., buy a home and raise children, they argue. The Trump administration attempted to dismantle the rule but never introduced regulations to do so.

Overseas Talent

About three-quarters of H-1B holders work in the tech sector, which relies on the visas to hire overseas talent, particularly in science and engineering. Last June, then-president Donald Trump signed an executive order temporarily freezing the issuance of new H-1B and H-4 visas. Twitter Inc. and Amazon last year called the order “short-sighted,” saying immigrant tech labor could help the U.S. economic recovery from the coronavirus pandemic. Representatives of Microsoft and Airbnb Inc. also spoke out, saying immigrants play a vital role in their companies’ success.

Trump’s argument was that the visa programs allow employers to undercut native-born workers on wages. The companies say they need highly skilled workers to fill crucial jobs.

Save Jobs USA, a group representing computer professionals at Southern California Edison who were replaced in 2015 by foreign workers in the U.S. on H-1B visas, sued to void the H-4 rule. The group argues DHS exceeded its authority when it issued it.

“This case basically goes to the heart of our democracy and how our country is going to be governed,” John Miano, a lawyer for Save Jobs, said in an interview. “We have big corporations now going to the DHS to create guest worker programs, and they’ve discovered they can get things easier by bypassing Congress.”

‘Government by Microsoft’

The average U.S. citizen can’t call the DHS secretary, but the tech titans can throw a dinner party and schmooze the agency’s leaders to get what they want, Miano said. The tech companies decided to weigh in on the case because “they want to protect their investment,” he said. “Do we have government by Microsoft and Google, or do we have government by elected officials?”

In a brief filed earlier this month, DHS under the Biden administration argued that Congress “delegated broad authority” to the agency, which includes “providing certain foreign nationals with temporary employment authorization.”

A federal appeals court panel ruled in 2019 that Save Jobs had standing, or the legal right, to sue. The full D.C. court declined to reconsider the decision in January 2020, and the fight is now back in the lower district court, where the companies and groups filed their brief Friday.

The case is Save Jobs USA v. U.S. Department of Homeland Security, 15-cv-00615, U.S. District Court, District of Columbia (Washington).

(Updates with background on Trump executive order and comment from Save Jobs USA.)

Source: Bloomberg