Proposal to Rescind H-4 EAD Program Could Come Soon

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At a glance

• DHS could publish its long-anticipated proposed rule to rescind the H-4 employment authorization document (EAD) program by March 18, which is the agency’s deadline to submit a legal brief in a lawsuit challenging the work authorization program.
• The proposal would not be implemented until finalized by DHS, which could occur as soon as mid-year. Eligible H-4 spouses should be able to apply for and renew employment authorization documents under current rules until further notice.

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The situation

The Department of Homeland Security could publish a proposed regulation to rescind the H-4 employment authorization document (EAD) program in the coming weeks, 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.

Termination of the H-4 spousal work authorization program has been a key regulatory goal of the Trump Administration. In early 2017, the Administration announced its intention to review and reconsider the H-4 EAD program – which has been in place since March 2015 – when it asked the Save Jobs court to place the case on hold while DHS prepared a regulation to rescind the program. However, after the proposed rule was postponed several times, the court granted Save Jobs USA’s motion to let the lawsuit continue. The Department of Homeland Security must file a legal brief in the case by March 18. This deadline could prompt the agency to issue its proposed rule and seek to end the lawsuit.

Details of the proposed rescission are confidential and will not be disclosed until the rule is released for publication in the Federal Register. The proposed rule is expected to specify when DHS would cease accepting new H-4 EAD applications and how long those holding a valid H-4 EAD would continue to be work-authorized.

Next steps for the proposed rule

Once the proposed rule has been cleared by the Office of Management and Budget (OMB) and 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 a final rule. The final rule must be approved by OMB before it can be published and implemented.  There is no set timeframe for publication of a final rule, but because it is one of the Administration’s regulatory priorities, it could be implemented as early as 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. 

Fragomen is closely monitoring the progress of the proposed regulation and the Save Jobs case. We will provide updates as developments occur.

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