DHS Seeks More Time to Reconsider H-4 Employment Rule

 

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Executive Summary

• In a federal lawsuit, the Department of Homeland Security has asked a court for three more months to review and reconsider the H-4 employment authorization rule.

• Eligible H-4 spouses of H-1B workers can still apply for new or renewed employment authorization, but the Department of Homeland Security could restrict or terminate the program in the future.

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The Department of Homeland Security (DHS) has asked a federal appeals court for more time to review and reconsider the H-4 employment authorization program. The Obama-era rule, which permits certain H-4 spouses of H-1B workers to apply for employment authorization documents (EADs), remains in place for now, but DHS could elect to restrict or terminate it in the future.

Ongoing Litigation Against H-4 Employment Rule

• DHS made its request to the U.S. Court of Appeals for the District of Columbia Circuit in the case of Save Jobs USA v. DHS, a lawsuit brought by a group of U.S. technology workers challenging the legality of the H-4 EAD rule.
• The lawsuit was dismissed by a lower court last year, but the plaintiffs are appealing that ruling.
• The government wants until December 31, 2017 to consider H-4 employment in light of the Buy American, Hire American executive order, which directs DHS to protect the interests of U.S. workers when administering U.S. immigration law.
• The plaintiff-appellants want their appeal to go forward, but the Trump administration has requested that the case be put on hold for the third time.

 

What’s Next for the H-4 EAD Program

The appeals court has not yet ruled on DHS’s request for more time. Even if the government’s motion is denied, there should be no immediate impact on the H-4 EAD program. Qualifying H-4 spouses can continue to apply for new or renewed employment authorization.

In its filing, DHS indicates that it may publish a new proposed rule concerning H-4 employment authorization in the coming months. If DHS does so, it is likely, though not certain, to use regular administrative procedures with a notice and comment period to allow individuals and organizations an opportunity to provide feedback. The submission of comments would be crucial to make DHS aware of the importance of the H-4 EAD program and to give feedback on any proposed changes.

Fragomen is closely monitoring the status of the H-4 EAD regulation, and will provide updates as developments occur.

If you have any questions about the H-4 EAD program, please contact the immigration professional with whom you work at Fragomen. This alert is for informational purposes only.