Possible H-4 EAD Rule Rescission – Delay Presents Options for Continuous Work Authorization

On May 26, 2015, a rule was passed allowing spouses of H-1B visa holders that hold H-4 visa status to work once they receive an Employment Authorization Document (“EAD”).  Not all H-4 visa holders are eligible. To qualify, the H-1B spouse must have been awarded H-1B time past their six year maximum duration (post six year extension) or have an I-140 Immigrant Visa Petition approved.  Many foreign nationals holding H-1B visa status, especially those born in India and China, can be stuck in the green card process for a long time, even for ten or more years. Previously, H-4 spouses could not obtain work authorization until they filed their I-485 Adjustment of Status Application, which is normally done at the tail end of this timing.  The H-4 spouse would only be issued interim work authorization through an EAD while waiting for the I-485 to be adjudicated and their green card issued. Without the H-4 EAD option, H-4 visa holders could wait years to be able to work, absent visa sponsorship from an employer.

In December 2017, the administration indicated its desire to rescind the H-4 EAD rule. Additionally, the rule is currently being challenged in the Circuit Courts.  The possibility of rescission has employers and  families extremely concerned and scrambling for possible visa options so that H-4 spouses can continue to work if their current EAD becomes invalid or they cannot apply for, or renew, their EAD cards.  Many employers have H-4 employees who have been working pursuant to the H-4 EAD rule and are looking to immigration counsel to provide alternative visa options for these established, often key, employees.

Although the significant impact on employers and families is clear if the H-4 EAD rule is rescinded (104,750 approvals since FY 2015), a recently announced delay in the rescission process provides a potential opportunity for employers to avoid any gaps in employment for their H-4 employees.  Originally, the Department of Homeland Security (DHS) planned to publish a proposed rule to rescind the H-4 employment authorization rule in February of 2018, but it has recently postponed the publication date to June of 2018. The Administration is expected, though not certain, to make these changes through regular administrative procedures.  Specifically, DHS would have to finish drafting the proposed rule and the Office of Management and Budget (OMB) must then review, after which DHS will most likely publish a formal notice of the proposed rule in the Federal Register. At that point, a public comment period of the proposed rule would be in effect for 30-60 days. Afterward, DHS will review the public comments, finalize and publish the rule to rescind the H-4 EAD rule.

This delay and rule making process will likely bring the timing past the start of the new fiscal year which begins on October 1, 2018.  This is significant because there is still an opportunity to work with immigration counsel to file H-1B cap subject petitions for eligible H-4 EAD employees. If a H-1B cap subject petition is selected and approved, an H-4 visa holder may begin working on their own H-1B visa on October 1, 2018.  Unlike the H-4 EAD, an H-1B visa requires employer sponsorship for a specialty occupation position. There is a numerical limitation of 85,000 H-1B cap subject visas and petitions must be filed the first week of April 2018 to normally be accepted for the lottery because of the traditionally higher number of H-1B cap subject filings than visas available.  Last year 199,000 H-1B visa petitions were filed for the 85,000 available visas. In addition, employers should review other visa options based on the foreign national’s country of citizenship, such as the E, TN, and H-1B1. These are governed by treaties and should not be looked at as long-term options because of the United States’ possible renegotiation/rescission from NAFTA or other treaties.  Employers should also look at the O-1 extraordinary ability visa for those who are established in their field.

It is evident that the administration intends to rescind the H-4 EAD rule. However, this delay provides employers with additional time to partner with immigration counsel to find alternatives for their H-4 employees.