Rule to Rescind H-4 Work Authorization Program Remains in Development, DHS Tells Federal Court

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At a glance

• The Department of Homeland Security reported to a federal court that the proposed rule to rescind H-4 work authorization is still under review with agency leadership. DHS has not indicated when it expects to publish the proposal.
• Eligible H-4 spouses can still apply for employment authorization under current rules until further notice.

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The situation

The Department of Homeland Security (DHS) has notified a federal appeals court that the long-anticipated draft rule to rescind H-4 work authorization is still being finalized, with senior agency leadership actively considering the rule’s terms.

DHS reported on the status of the proposed H-4 rule in a filing with the U.S. Court of Appeals for the District of Columbia in the case of Save Jobs USA v. DHS, a lawsuit brought by a group of U.S. technology workers challenging the H-4 employment authorization document (EAD) program.  The court proceedings are being held in abeyance while DHS moves forward with its plans to rescind the H-4 EAD program, and DHS is required to provide the court with status reports on the proposed rule every 90 days. 

Today’s status report does not disclose when the agency expects to publish the proposed rule, but reaffirms DHS’s intention to follow through on rescission, confirming that once the rule clears DHS, it will move on to the Office of Management and Budget (OMB) for standard rulemaking review.

The draft rule was originally slated for publication in the Federal Register in February 2018, then was postponed to June.  Speaking last week at an event held by the Center for Immigration Studies, a group that seeks to reduce immigration to the United States, USCIS Director L. Francis Cissna explained that, while the H-4 EAD rescission remains an agency priority, there are currently more urgent rules competing for leadership attention within DHS.

Next steps

Once the proposed rule is published in the Federal Register, organizations and individuals are expected to 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. 

What the forthcoming proposal means for current H-4 spouses

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

Fragomen is closely monitoring the H-4 EAD rescission and will issue further Client Alerts 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.