DHS to Reconsider H-4 Employment Authorization Rule

United States

The Department of Homeland Security intends to review and reconsider a regulation that permits certain spouses of H-1B workers to apply for employment authorization documents (EADs), the agency disclosed in a court filing today.  Though the H-4 EAD program remains in place for now, DHS could elect to restrict or terminate it in the future.

Under current rules, H-4 nonimmigrants are eligible to apply for employment authorization if their H-1B spouse (1) has an approved Form I-140 immigrant worker petition; or (2) has received a one-year extension of H-1B status beyond their sixth year based on a filed I-140 or labor certification.  The H-4 EAD program was established by the Obama Administration in 2015.

DHS announced its plans to review the H-4 EAD rule in a motion filed with the U.S. Court of Appeals for the District of Columbia Circuit.  The court is hearing an appeal in the case of Save Jobs USA v. DHS, a lawsuit brought by a group of U.S. technology workers challenging the H-4 EAD rule.  The lawsuit was dismissed last year; the plaintiffs are appealing that ruling. In February, the Trump Administration asked the court to place the appeal on hold while it considered its position on the regulation.  In today’s filing, the Administration has asked for an additional six months to review the regulation and determine its next steps.

What’s Next for the H-4 EAD Program

DHS’s announcement does not have an immediate impact on the H-4 EAD program.  Qualifying H-4 spouses can still apply for new or renewed employment authorization for the time being.

However, DHS has indicated that it may publish a new proposed rule concerning H-4 employment authorization in the coming months, which could seek to limit or terminate the H-4 EAD program.  If it does so, it is likely, though not certain, that such changes would be made through regular administrative procedures allowing for notice and a 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.

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