The H-4 EAD rule took effect on May 26, 2015, but there is a proposal for its rescission.
The Department of Homeland Security (DHS) has informed a federal appeals court that a proposed regulation to rescind the employment authorization program for certain H-4 spouses―aka the H-4 EAD work authorization―is not likely to be published before spring 2020. Generally speaking, dependent H-4 spouses of H-1B nonimmigrants are eligible for work authorization if the principal H-1B nonimmigrant is the principal beneficiary of an approved I-140 immigrant petition or has been granted a post-sixth year H-1B extension of status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). The H-4 EAD rule took effect on May 26, 2015, but there is a proposal for its rescission, leaving many applicants wondering what to do and whether they would be able to continue obtaining H-4 work authorization.
In a September 16, 2019, letter to the U.S. Court of Appeals for the D.C. Circuit in Save Jobs v. DHS, Case No. 16-5287 (D.C. Cir.), the lawsuit challenging the H-4 EAD program, the DHS noted:
DHS formally submitted the proposed rule, titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization (H-4 EAD proposed rule), to both the Office of Management and Budget (OMB) and Office of Information and Regulatory Affairs (OIRA) for their review under Executive Order 12866 on February 20, 2019. The proposed rule is currently undergoing the interagency process as required by Executive Order 12866. As previously indicated, DHS’s intention to proceed with publication of the H-4 EAD proposed rule remains unchanged. At this point, DHS has informed counsel that it believes the earliest possible publication date for that rule would be in spring 2020.
The DHS has thus indicated that a final regulation rescinding the H-4 work program is not likely to occur in the near term. If the proposal is published, the public would have an opportunity to provide feedback during a public comment period, typically 30 to 60 days long. After the public comment period, DHS would review the feedback and craft a final regulation, which would have to undergo further OMB review before publication, which typically takes a few months. This means that eligible H-4 spouses can continue to seek new or renewed work authorization under current rules. It would be prudent for H-4 spouses to file their H-4 EAD applications as soon as they are eligible. H-4 EAD renewal applications can be filed for up to six months before the EAD expiration. New H-4 EAD applications can be filed with H-4 nonimmigrant extension or change of status applications, if the other eligibility requirements are met.
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