DHS Expected to Take Steps to Rescind H-4 Employment Authorization

The Department of Homeland Security (DHS) is expected to issue a proposed regulation by March 18, 2019 to rescind an Obama-era regulation that allows H-4 spouses of certain H-1B employees to apply for employment authorization documents (EADs), according to DHS’ statements in a federal lawsuit. The Obama-era H-4 EAD regulation currently allows spouses of certain H-1B employees to apply for employment authorization and has benefited more than 800,000 spouses. The Trump administration has repeatedly stated its intention to repeal the regulation, but its timeline for repeal has been suggested only through court filings in the ongoing litigation in Save Jobs USA v. DHS, a lawsuit brought by a group of U.S. technology workers. DHS has kept the case on hold for several months by successfully arguing to the court that it is in the process of repealing the rule, thus rendering the case moot. After repeatedly holding the case in abeyance, the U.S. Court of Appeals for the D.C. Circuit updated its briefing schedule and ordered DHS to submit its brief by March 18. This deadline could prompt DHS to issue its proposed rule in order to attempt to end the lawsuit.

The H-4 EAD rule remains in place until the agency issues a regulation rescinding it by first issuing a proposed rule and opening a public comment period (typically 30-60 days long), and then issuing a final rule. This rulemaking process would take several months, so a final regulation would not be finalized until mid- to late-2019.

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. Employers are reminded that the current H-4 EAD rule remains in place at this time.

In the meantime, eligible foreign nationals who plan to apply for or renew an H-4 EAD should do so as soon as they are eligible (six months before the expiration of their current EAD). 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.