December 21, 2017

The H-4 EAD Program Is On the Chopping Block in 2018

In 2015, the Department of Homeland Security published a regulation that allows for certain spouses of H-1B temporary workers to seek an Employment Authorization Document (EAD). Those spouses, in dependent H-4 status and with an approved EAD, are authorized to accept employment with any U.S. employer for the duration of the approved EAD. This was a significant benefit for H-4 dependent spouses, who otherwise might remain in the U.S. in dependent status for many years without the ability to work, while their H-1B spouse awaits the ability to apply for the family’s green cards due to priority date retrogressions.

The H-4 EAD program came under fire shortly after it was implemented. A group of U.S. workers filed suit against the government under the name Save Jobs USA. They claimed to have been displaced by H-4 EAD workers. Their case was initially dismissed, but they have appealed to the U.S. Court of Appeals for the D.C. Circuit. The current Department of Justice has filed multiple extension requests in the case and does not appear likely to defend DHS’s regulation.

Meanwhile, DHS recently took preliminary steps to rescind the H-4 EAD program by announcing in its Fall Regulatory Plan that it will propose a new rule by October 2018. The abstract for the proposed rule states that, “DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.” If the proposed rule is published to the Federal Register in October 2018, a notice and comment period will follow, DHS will take the public’s comments into consideration and then a final rule will be issued. This means that unless a court intervenes in the meantime, it is likely that the H-4 EAD program will be eliminated in late 2018 or early 2019. It’s unclear if already-approved H-4 EADs would be revoked at that time, or if they would remain valid until their expiration dates. We also do not yet know if there will be a “grace period” to apply for initial or renewal EADs before the rescission takes effect.

What can you or your employees do to prepare for this likely loss of employment authorization? First, we recommend that you contact our office to discuss alternate nonimmigrant employment-based options, as well as to review the timeline to permanent residency for both members of the H-1B/H-4 married couple. If, for instance, the H-4 EAD holding spouse would otherwise qualify for H-1B status in his or her own right, now is the time for the employer to consider filing a cap-subject H-1B petition by the April 2018 deadline. Several other alternatives might be considered as well. If you would like additional information, please reach out to our firm to discuss further or to set up a consultation.

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