Proposed H-4 EAD Rescission Under Federal Review

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At a glance

• The Department of Homeland Security has submitted a proposal to rescind the H-4 spousal work authorization regulation to the Office of Management and Budget for review.
• Once OMB clears the proposed rule, it will be published in the Federal Register for public comments. The proposal will not take effect until finalized by DHS, a process that typically takes several months.
• Eligible H-4 spouses can still apply for new or renewed employment authorization under current rules until further notice.

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The situation

As long anticipated, the Department of Homeland Security (DHS) has submitted a proposal to rescind the H-4 spousal work authorization regulation to the Office of Management and Budget (OMB) for review – the next step in the process of terminating the program.  The proposed rule comes ahead of a March 18 court deadline in Save Jobs USA v. DHS, a lawsuit brought by a group of U.S. technology workers challenging the program.

Details of the proposal – including the impact on H-4 spouses who currently have work authorization – are confidential and will not be disclosed until the rule is released for publication in the Federal Register.

Next steps

OMB has 90 days to review the proposal, but could take less time. After the proposal clears OMB review, it will be published in the Federal Register. Once the proposed rule is published, organizations and individuals are expected to have an opportunity to provide feedback during a public comment period, which is typically 30-60 days long. 

After the public comment period closes, DHS will review the feedback it receives and prepare to issue a final rule to rescind the program.  There is no set timeframe for publication of a final rule, but because it is one of the Administration’s key regulatory priorities, it could come by this summer.

Comments from employers will be crucial to make DHS aware of the importance of the H-4 EAD program as an asset in the global competition for talent. If your organization wishes to comment, please contact your designated Fragomen team or the firm’s Government Strategies and Compliance Group.

What H-4 spouses should do now

The forthcoming proposed regulation would not have immediate impact on H-4 spouses. DHS is expected to continue to accept and adjudicate new H-4 EAD applications and renewals under current rules until the rescission regulation is finalized and implemented. However, termination of the program could come within months of the release of the proposal.

Eligible foreign nationals who plan to apply for or renew an EAD under the H-4 program should do so as soon as they are eligible. Foreign nationals can file an EAD renewal application up to six months before the expiration of their current document. An H-4 EAD application can also be filed at the same time as the H-1B principal’s application to extend status beyond the sixth year. Eligible spouses in another immigration category can submit an EAD application along with an application to change status to H-4. 

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