Visa delays leave thousands of South Asian women unable to work

·15 min read

When Shilpa Sachdev lost her job as human resources associate at a grantmaking foundation last month, she joined the ranks of the tens of millions of workers across the country who have become unemployed during the Covid-19 pandemic.

But for Sachdev, the pandemic didn’t cause her unemployment: U.S. Citizenship and Immigration Services (USCIS) did. The federal agency failed to renew her work authorization, linked to her H-4 visa status as the spouse of an H-1B visa holder, before her previous work authorization had reached its three-year limit and expired in November. As a result, Sachdev remains unable to work until the agency renews her work permit — a process its website claims could take up to 17 months.

Now, Sachdev worries that she may not be able to return to the job she loves. And since her 18-month-old son’s day care is closed in the pandemic, she takes care of him full time — leaving her without the free time to look for other potential jobs.

“I don’t know if my job will be there. The company is not going to wait indefinitely for me,” said Sachdev, who emigrated from India to California in 2013. “We live in Silicon Valley — it needs to be a two-income household.”

Sachdev is one of what immigration attorneys estimate to be thousands of immigrants across the country — most of whom are women from India, and some of whom were working on the front lines of the pandemic — who are now unable to work because of increasingly long delays by USCIS under the Trump administration in the processing of their visa-based work authorizations, known as H-4EADs.

Experts say that while the Trump administration has met resistance in its attempts to overhaul the H-1B program as part of its broader efforts to curb immigration, targeting the spouses of H-1B workers on the H-4EAD program by repeatedly threatening to revoke it — and by slowing the processing of the work permits — has proven easier.

The work permits are normally issued to spouses of skilled workers on H-1B visas after their employers have begun the process of sponsoring their families’ green cards. Experts say that while the Trump administration has met resistance in its attempts to overhaul the H-1B program as part of its broader efforts to curb immigration, targeting the spouses of H-1B workers on the H-4EAD program by repeatedly threatening to revoke it — and by slowing the processing of the work permits — has proven easier.

The H-4EAD program was "low-hanging fruit in terms of immigration policy, especially considering that Trump had run on much broader sweeping immigration restrictions,” said Amy Bhatt, the author of “High-Tech Housewives: Indian IT Workers, Gendered Labor, and Transmigration,” a book about the experiences of Indian women in the U.S. on H-4 visas.

With the administration’s days numbered, advocates for the work authorizations are calling on the incoming Biden administration to direct USCIS to end the processing lapses that lead to job losses in order to provide stability to the mostly Indian women across the country whose careers are currently dictated by the federal government.

A group of 60 House representatives on Wednesday sent President-elect Joe Biden a letter, written by Rep. Bonnie Watson-Coleman, D-N.J., requesting that his administration extend the validity period of all expired H-4EADs on his first day in office next month, in order to allow time to “rectify the systemic processing issues that have been created by the Trump administration” and provide “immediate relief” to affected families.

More than 100 of Watson-Coleman’s constituents contacted her office in the past year about H-4EAD lapses, staffers said, noting that the outreach was a 900 percent increase over the amount of constituents who voiced their concerns about the same issue the previous year. New York City is a top hub for H-1B visa holders, as are San Francisco, Houston and Atlanta.

Ninety-three percent of the more than 90,000 people who were granted first-time H-4EADs from 2015 to 2018 were women, most of whom came to the U.S. from India, according to data from USCIS. Overall, 93 percent of current H-4EAD holders are South Asian women, according to South Asian Americans Leading Together.

Ninety-three percent of the more than 90,000 people who were granted first-time H-4EADs from 2015 to 2018 were women, most of whom came to the U.S. from India, according to data from USCIS. Overall, 93 percent of current H-4EAD holders are South Asian women, according to South Asian Americans Leading Together.

On average, H-4EAD holders surveyed for a report published last year by the South Asian American Policy and Research Institute faced a four-year employment gap in the U.S., not including the length of time it would take to obtain a job after receiving the H-4EAD and assuming the H-4 visa holder did not obtain an employment visa during that time.

Some of the H-4EAD holders affected by recent delays were working on the front lines of the pandemic, as health care workers and researchers, before they were forced to abandon their jobs when their work authorizations expired before they received renewals, staffers for Watson-Coleman said.

Careers in science and health care were the fifth most popular roles filled by South Asian H-4EAD holders who were surveyed for the SAAPRI report. Eight percent of those surveyed worked in science and health care, behind 36 percent who worked in technology, 11 percent in business and human resources, 10 percent in banking and finance, and 9 percent in fields not covered by the survey. Smaller amounts reported working in engineering, education and communications.

The Biden transition team did not respond to a request for comment.

If history is any indication, Vice President-elect Kamala Harris might be sympathetic to the plights of Indian women in the U.S. on H-4 visas — and not just because of her own Indian heritage. In September 2018, as a senator from California, Harris co-authored with Sen. Kirsten Gillibrand, D-N.Y., a letter to then-Secretary of Homeland Security Kirstjen Nielsen and then-Director of USCIS Lee Cissna urging them not to revoke the H-4EADs a month after a court filing revealed senior DHS leadership were “actively considering” doing so.

Three days before President Trump took office in January 2017, the Department of Homeland Security eliminated a regulation that required USCIS to process H-4EADs within 90 days. Since then, USCIS data shows that processing times for H-4 visa applications and work authorizations have increased to what immigration attorneys characterize as unprecedented wait times; the attorneys spoke to NBC News in a dozen of interviews conducted over the past week with advocates of, and experts on, the work authorizations.

One reason the delays are so egregious, advocates and experts claim, is because H-4 holders cannot file to renew their work authorizations more than six months before they expire, leaving employed applicants with no way to ensure they will be able to secure renewed work authorizations and keep their jobs, given that wait times regularly stretch beyond six months.

In response to a request for comment about immigration attorneys’ claims that processing times for H-4 visas and work authorizations have doubled and tripled on average under the Trump administration — sometimes allegedly taking close to a year — a USCIS spokesperson pointed a reporter for NBC News to the average historical processing times on the agency website.

That data shows that processing times have indeed increased by about an extra two months for each of the two forms required to secure an H-4EAD: one to extend or change nonimmigrant status, and the other to apply for employment authorization. Applicants routinely file both together, with the work authorization approval normally following the visa approval — meaning that based on the average times listed, an applicant who applied for an H-4EAD this past year could wait an average of nearly 10 months to receive a work authorization.

In response to inquiries about how many H-4EADs are currently pending and the agency’s protocol for processing the work permits, a spokesperson for USCIS said that representatives do not comment on issues pending litigation. The agency is facing various lawsuits in federal district courts across the country over the processing delays of H-4EADs.

And in response to an inquiry about how the pandemic has affected the agency’s processing of H-4EADs, the spokesperson said the agency has maintained the ability to process the work authorizations despite the pandemic.

After a lawsuit this summer, the agency was required by a court order to issue more than 45,565 employment authorization cards — which go to several categories of immigrants, not just H-4 visa holders — after USCIS failed to distribute the cards even after the applications had been approved. Agency representatives attributed the incident to a lapse in production caused by both the end of a contract with a printer and a hiring freeze within USCIS, The Washington Post reported. It is unknown how many of the missing cards affected H-4EAD applicants specifically, according to Robert Cohen, the attorney who represented the four plaintiffs in the case on behalf of the 75,000 people who were affected by the delays (one of the plaintiffs was suing for her H-4EAD).

The increase in processing delays under the Trump administration has left an untold number of mostly immigrant Indian women without work — and now grappling with additional stress, anxiety, and boredom prompted by being unemployed during the pandemic.

“Some days I just don’t get up from the bed,” said one, who is awaiting her H-4EAD renewal and spoke on the condition of anonymity out of fear of retribution from USCIS. “If I had a job, I would’ve been positively engaged in the day, and would have some amount of ownership and achievement — which, currently, sometimes there isn’t. The pandemic amplified this whole situation.”

An ‘invisible wall’ for immigrants

Since the Department of Homeland Security introduced the 2015 rule change allowing H-4 holders to apply for work authorizations once their spouses’ employers had filed to apply for green cards, the Trump administration has repeatedly threatened to eliminate the spousal work authorization option entirely, following the introduction of a 2017 executive order by Trump that sought to tighten regulations on foreign workers to promote the hiring of American workers.

Indian and Chinese men, in that order, make up the majority of H-1B holders, up to 85,000 of whom can enter the country per year to pursue careers in fields including science, engineering and information technology, teaching, and accounting.

But because of a 1965 rule that no country could receive more than 7 percent of green cards in a year, green card backlogs disproportionately affect Indian families who are in the country on H-1B visas, experts said. And since spouses of H-1B visa holders cannot apply for work authorizations until they have cleared certain hurdles in the green card application process, the backlog therefore directly affects the period of time it takes for the mostly Indian women on H-4 visas to get their work authorizations.

On average, applicants from India on H-4 and H-1B visas wait 10 years to get a green card, according to the SAAPRI report, which also notes that 28 percent of H-4EAD holders surveyed mentioned the green card backlog as among the biggest problems facing H-1B/H-4 families today.

Beyond the green card backlog, attorneys and advocates point to a pair of specific recent changes in USCIS’ processing procedures affecting H-4EAD applications: the introduction of a biometric, or fingerprinting, requirement for H-4 applicants in March 2019, and the elimination of premium processing of H-4 visa and work authorization applications. Both changes were also specified in a lawsuit filed in a Texas federal district court in October, in which 230 plaintiffs allege the agency acted in bad faith against the H-4 spouses of H-1B visa holders by implementing the changes.

In response to inquiries about the reasons for the introduction of the biometrics requirement and the elimination of premium processing as both relate to H-4EADs, a spokesperson for USCIS said that representatives do not comment on issues pending litigation.

In the early months of the pandemic, USCIS offices were closed for in-person services from March to July, making it impossible for H-4EAD applicants to attend biometric appointments, further delaying the application processing. In April, guidance posted on the agency’s website noted that in-person appointments at its application support centers would be automatically rescheduled for when the agency re-opened, and that applicants would be informed of their new appointment dates by mail.

Under the Trump administration, USCIS also eliminated its practice of processing H-4 visa holders’ applications with their family members’ expedited H-1B applications within 15 days, according to Robert Cohen, the attorney who represented the plaintiffs in the summer lawsuit on the missing employment cards and a partner at Porter Wright Morris & Arthur LLP in Columbus, Ohio, and Nisha Karnani, an attorney and partner at Antonini and Cohen Immigration Law Group in Atlanta. Agency representatives informed H-4 visa applicants who inquired that they were no longer “extending the courtesy” of concurrent premium processing that they once had, Karnani said — so while their spouses on H-1B visas could seek premium processing for their visa renewals, the H-4 holders could not.

Cohen called the biometric requirement unnecessary, given that it applies to all family members — including children — and therefore cannot be justified as a criminal background check, adding that it was also the reason behind the elimination of premium processing for H-4 applicants: Since the spouses of H-1B applicants now must fulfill the biometric requirement, which H-1B applicants are not subject to, USCIS cannot process their applications together.

On Oct. 1, Trump signed into law a bill introduced by Rep. Nita Lowey, D-N.Y., that expands the availability of 30-day premium processing to more work authorization applications — including H-4EADs — for $1,500 per filing. In response to an inquiry about when USCIS planned to act on the new law by implementing premium processing for H-4EADs, an agency spokesperson said representatives are “currently assessing technical, logistical and legal requirements to expand premium processing to additional benefit types.”

Cohen characterized the new law as a cash cow for USCIS, adding that it does nothing to address the underlying issue of processing delays.

“With processing times at 6-8 months, there will be no choice but to pay the premium,” he said. “In some places, this is called extortion.”

‘My life is on hold’

The status of the women waiting for their work authorizations recalls those of women on H-4 visas who, from its 1990 introduction until the 2015 rule change, were unable to work at all upon arrival in the U.S. As a result, they were — and are — left dependent on their spouses, more vulnerable to domestic violence and immigration-based abuse, and subject to long days of boredom and feelings of isolation.

Many leave behind careers in India and other home countries to find their lack of agency in the U.S. stifling, said Bhatt, the author of “High-Tech Housewives,” who also co-wrote the SAAPRI report.

“You’re moving to a country where you don’t have a social network or familial support system, then on top of that you don’t have a legal identity outside of your husband,” she said.

Shilpa Sachdev emigrated from India to California, where her husband was working as an engineering manager. (Courtesy Shilpa Sachdev)
Shilpa Sachdev emigrated from India to California, where her husband was working as an engineering manager. (Courtesy Shilpa Sachdev)

The H-4EAD renewal applicant who spoke to NBC News anonymously said she has indefinitely abandoned her dream of starting a small food and events business that highlights the international cuisines of immigrants and refugees — who she also planned to employ — as a result of the delays.

“You start planning your life, and everything has to be put on hold,” she said. “My life is on hold.”

Her life was also on hold during the two-and-a-half years it took her to get her first H-4EAD, due in part to both filing delays from her husband’s employer and the green card backlog. She finally received her work authorization in November 2019.

In March, she received an offer to work as a part-time volunteer coordinator with Raksha, an Atlanta-based organization serving South Asian communities, an employee at the organization confirmed to NBC News. But the woman couldn’t accept the job, she said, because her work authorization would only be valid for another two months before it would expire again, when her husbands’ did. Because his H-1B visa would reach its three-year expiration date in May, so would her work authorization — even though she had only received it six months earlier.

She has since joined a group lawsuit, with other H-4EAD applicants, against USCIS in a federal district court, federal court records confirm. Joining the lawsuit, she said, cost her $2,800.

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