DHS Defends H-4 EAD in Court, Plans to Rescind Work Authorization Through Agency Processes
Earlier this month, the U.S. Department of Homeland Security argued that a federal judge should not block work authorization for certain spouses of H-1B visa holders in the U.S. in response to a lawsuit brought by U.S. technology workers. In the Save Jobs USA v. DHS. lawsuit, the workers purport that DHS had no authority to issue work authorization to H-4 spouses in the first place and that the program should end immediately.
However, DHS’s argument to the judge shouldn’t be seen as a defense for the H-4 EAD, but rather support for the agency’s intention to rescind the rule through rulemaking. The DHS has repeatedly noted its intention to issue a Notice of Proposed Rulemaking (NPRM) to remove work authorization for dependents of certain H-1B visa holders.
DHS first extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence in 2015. That rule has been under reconsideration as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017.
The proposed rule moved forward to review by the Office of Management and Personnel, where it has been held up for over a year. While the proposed regulation is not available for public review yet, some have predicted that the rule could be published in the Federal Register this spring, as it still remains on the Spring Regulatory Agenda.
While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.
Please contact us at firstname.lastname@example.org if you would like to discuss options for an independent work-authorized status.