Is There Danger Ahead for H-4 EAD Program?

The rumors that this Administration may end the H-4 EAD program for spouses of H-1B workers may indeed no longer be rumors.  Since May 26, 2015, USCIS allowed employment authorization for certain H-4 dependent spouses.  The H-4 spouse is eligible for work authorization provided the H-1B spouse meets the following:

  • Has an approved I-140, Immigrant Petition for Alien Worker.
  • Has H-1B status extended beyond 6 years under AC21 (which allows H-1B employees seeking the green card to obtain extensions beyond 6 years if their permanent resident application is pending).

For the first time H-4 spouses got an opportunity to work.  However, on April 23, 2015, a lawsuit was filed with the Federal District Court by Save Jobs USA claiming the new rule had no protections for U.S. workers and that Department of Homeland Security (DHS) did not have the authority to grant EADs to H-4 visa holders.  The lawsuit against the DHS case was dismissed in September 2016 and Save Jobs USA filed an appeal with the Court of Appeals DC Court.  This is still pending and DHS is in its fourth motion for abeyance.

On December 14, 2017, the Department of Homeland Security (DHS) released a notification that they plan to rescind the H-4 EAD rule, and on December 22, 2017, DHS notified the U.S. Court of Appeals they will issue a proposed regulation in February to rescind the H-4 spouse EAD regulation.

Based on this Administration’s policy of Buy American, Hire American, this program appears to be doomed.  Until the proposed regulation is published, it is unknown how and when DHS will phase out the H-4 EAD.

Currently qualified H-4 spouses may continue to file for the H-4 EAD program.  USCIS will continue to accept and process new and extension EAD applications until further notice.

 

About the Author:  Robin L.H. Vermette

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