In a move that could affect nearly 90,000 H-4 Employment Authorization Document holders, the US Department of Homeland Security has proposed a rule to rescind the H-4 spouse work authorization regulation. Current H-4 EAD spouses are still eligible to apply for new or renewed employment authorization as the proposed rule is still under review.
The US Department of Homeland Security (DHS) submitted a proposed rule on February 20, 2019, to the Office of Management and Budget (OMB), seeking to rescind the current H-4 spouse Employment Authorization Document (EAD) regulation. This would effectively end the H-4 EAD program. Should the rule be rescinded, it is estimated that upwards of 90,000 H-4 EAD holders who have benefited from the program will be affected.
To take effect, the proposed rule still needs to be cleared by OMB, published in the Federal Register for public comment, and then finalized by DHS—a process that may take several months. In the meantime, under the current EAD rule, certain H-4 spouses are still eligible to apply for new or renewed employment authorization.
As it stands now, H-4 spouses of H-1B skilled-worker visa holders are in certain circumstances eligible for work authorization in the United States pursuant to a rule introduced by the Obama administration in May 2015. The rule was first challenged in 2015 by a group of US technology workers in a lawsuit now pending in the US Court of Appeals for the DC Circuit. The federal appeals court in this case recently mandated that DHS submit arguments in favor of the revocation, prompting DHS to submit the proposed rescission rule for OMB review.
The OMB now has up to 90 days to review the proposed rule. During this review period, the text and details of the proposed rule are kept confidential, and no changes to the current H-4 EAD program will be effected; thus, H-4 dependent spouses may still work legally. Once the proposed rule clears OMB review, it will be published in the Federal Register, allowing time for the public to review and comment. DHS will then examine the feedback it receives and prepare to issue a final rule. The timing of these steps generally varies, but it is estimated that a final H-4 rescission rule could be published any time between May 2019 and January 2020.
As of this writing, there is no immediate impact on H-4 spouses who currently hold or plan to apply for EADs. The US Citizenship and Immigration Services continues to issue new and renewed H-4 EADs under the current rule, and we expect DHS to continue to do so until the rescission rule is finalized and implemented. We will continue to monitor the rule’s progress as it moves through OMB review and the notice and comment period, processes that typically take several months.
Should the proposed rule take effect, H-4 EAD holders would not immediately lose their right to work in the United States, and their EADs would presumably remain valid until their dates of expiration. The loss of an EAD may affect the financial ability of H-1B visa holders to remain in the country (or for potential H-1B visa holders to enter). Therefore, eligible foreign nationals intending to apply for or renew their H-4 EADs under the existing program should do so as soon as they are eligible (for initial H-4 EAD applications, eligible H-4 spouses can file at the same time as the H-1B principal’s application to extend status beyond the sixth year; for current H-4 EAD holders, renewal applications can be filed up to six months before the existing document’s expiration).
We are closely watching the progress of the proposed H-4 rescission rule. As updates become available, we will notify affected clients of the implications, and discuss next steps for minimizing the impact of the revocation of H-4 spouse employment authorization.
If you have any questions or would like more information on the issues discussed in this Immigration Alert, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord
Miami
Laura C. Garvin