Proposal to Rescind H-4 EAD Regulation Moves Closer to Completion

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At a glance

• DHS has told a federal appeals court that it is in the last stages of drafting the proposed rule that would terminate the employment authorization program for certain H-4 spouses.
• The proposal is expected to be published for public feedback in June.
• Eligible H-4 spouses should still be able to apply for employment authorization under current rules.

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A closer look

The Department of Homeland Security (DHS) has notified a federal appeals court that a long-anticipated draft rule to rescind the H-4 spousal work authorization program is in the final stages of clearance before being sent to the Office of Management and Budget (OMB) for review.

DHS announced the status of the rule in a filing 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 in 2016 and the plaintiffs are appealing that ruling. The proceedings are being held in abeyance while DHS moves forward with its plans to rescind the H-4 EAD program.

The proposed regulation was originally slated for publication in February but was postponed to allow DHS to complete an analysis of the economic impact of the regulation.

Next steps

Once OMB completes the review process, DHS is expected to publish a formal notice of the proposed rule in the Federal Register. Organizations and individuals would then have an opportunity to provide feedback during a public comment period, which is typically 30-60 days long.

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.

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 it is one of the Administration’s key regulatory priorities.

What the proposal means for current H-4 spouses

The regulation under review is a proposal only and does not have immediate impact on H-4 spouses. USCIS should continue to accept and adjudicate new H-4 EAD applications and renewals until the rescission regulation is finalized and implemented, a process that is expected to take several months.

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