My column last Friday looked at a group of legal immigrants — mostly women and predominantly high-skilled, including many entrepreneurs — whose newfound vulnerability under the Trump administration has received scant attention. They have been anxiously waiting for the White House to decide whether to stand by an Obama-era rule that allows them to work and run their own businesses.
As I noted last Friday, they were expecting to get a decision today. Instead, the Trump administration decided to keep them in limbo for a while longer.
The immigrants in question are spouses of H-1B skilled workers who have been preliminarily approved for green cards, but whose applications are stuck in interminable backlogs. (The United States has per-country quotas for green cards, which are the same for every country regardless of size; people from tiny countries such as Iceland can get green cards quickly, while people from big countries such as India might wait decades.) In 2015, the Obama administration issued a regulation authorizing some of these spouses to work — or launch businesses — while their families were stuck on the green card waiting list.
This regulation was almost immediately (A) criticized by then-Sen. (and now Attorney General) Jeff Sessions, and (B) challenged in court, by a group that doesn’t think such spouses should be allowed to work. The Obama administration fought the lawsuit.
When President Trump came into office, however, the government asked the court for a 60-day pause while it decided what to do with the Obama-era rule. The new administration’s options were basically:
- keep defending it (half-heartedly, perhaps);
- issue a new regulation in its place (which would require a long and arduous rule-making process); or
- settle with the plaintiff (which could allow the administration to kill the rule altogether, without going through that long rule-making process).
Given Sessions’s comments in 2015, many of the immigrants on these visas feared option #3 was coming and they would be forced to give up their careers.
Today, the 60-day pause was up. Rather than announcing what it planned to do, however, the Trump administration instead asked the court for yet another delay.
It said it needs this additional time — another six months — to decide whether it wants to start another rule-making process. Not to actually start the rule-making process, mind you, just to consider whether it even wants to do so.
The government offered to give updates every 60 days between now and then about its thinking, and to “inform the Court promptly should it determine new rulemaking is or is not appropriate before 180 days elapse.”
In other words, the immigrants whose livelihoods hang in the balance can continue working … for another 60 days. At that point they might or might not find out the government plans to revoke their work authorization. Who knows?!
Understandably, this has left many families with a great deal of anxiety.
One person I spoke with, 37-year-old Anuj Dhamija of Hartford, Conn., bought a home-improvement franchise last year after he got his work authorization as the spouse of an H-1B-holder. He has spent about $60,000 on the business so far, including the initial franchising fee and purchase of materials. He interviewed job candidates in the fall, but has been holding off on giving his chosen hires a start date or opening his own showroom because he wasn’t sure he’d be able to continue working. He was hoping to get some certainty today, but clearly that didn’t happen.
Dhamija is one of the named intervenors in an attempt by Immigration Voice, a high-skilled immigrant advocacy group, to join the court case. He and I spoke by phone last week, and this afternoon I emailed to ask how he was taking the news. He responded:
This situation actually adds more to the limbo as now the whole decision making drags out. I cannot make the required additional investment of approx $200k and cannot hire people until I really know what’s going to happen. This is just getting more frustrating as I cannot move on with my life and my existing investment is sitting dead. I also don’t know if my franchisor will cooperate with me any further as we have already lost a lot of time.
For all the claims from this administration that it’s “pro-business,” the amount of policy uncertainty Trump has been generating — on taxes, health care, trade, and now immigration — is inexcusably anti-business. The lingering uncertainty entrepreneurs such as Dhamija face is no exception.