DHS Postpones Proposed H-4 EAD Rescission Rule

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At a glance

• DHS now plans to publish a proposed rule to rescind the H-4 spousal work authorization regulation in June. Its original target was February 2018.
• The postponement means that the H-4 EAD program will remain in place longer than anticipated, while DHS completes the months-long regulatory review process.
• USCIS continues to accept and process H-4 EAD applications.

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The situation

The Department of Homeland Security has postponed the projected date for publication of a proposed rule to rescind the H-4 spousal work authorization program. The agency now expects to publish the proposal in June 2018; it had previously announced a February 2018 target date.

DHS disclosed its updated plans in a filing in Save Jobs USA v. DHS, a challenge to the H-4 EAD rule that is now pending in the D.C. Circuit Court of Appeals. Last week, the court granted DHS’s motion to hold the lawsuit in abeyance while DHS takes steps to rescind the regulation.

Next steps

DHS’s announcement means that the H-4 EAD program will remain in place for at least several more months. Once DHS finishes drafting the proposed rule, the Office of Management and Budget (OMB) must review the rule. After the OMB review process is complete, 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 (typically 30-60 days).

Employers’ comments 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 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 Trump Administration’s key regulatory priorities.

What this means for current H-4 spouses

The current proceedings do not have immediate impact on the H-4 EAD program. USCIS should continue to accept and adjudicate new H-4 EAD applications and renewals until a rescission regulation is finalized and implemented, a process that is expected to take several months once initiated.

If your organization has questions about DHS’s rulemaking plans, please contact the immigration professional with whom you work at Fragomen. This alert is for informational purposes only.