Since March 2015, the Employment Authorization Document (EAD) program for spouses of H-1B beneficiaries (H-4) has been in place, offering H-4 spousal work authorization. However, in early 2017, the Trump Administration announced its intentions to review and reconsider the H-4 EAD program.
Prior to that date, in April 2015, a group of tech workers formed by Americans who were employed at Southern California Edison filed a complaint for declaratory and injunctive relief and a motion for preliminary injunction staying the implementation of the United States Citizenship and Immigration Service’s (USCIS) final rule on employment authorization for certain H-4 dependent spouses. The Trump Administration asked the court for this lawsuit, Save Jobs USA v. DHS, to place the case on hold while the Department of Homeland Security (DHS) prepared to propose a regulation to rescind the program.
After this proposed rule from DHS was postponed multiple times, the court granted Save Jobs USA’s motion to let the lawsuit continue. DHS has a deadline of March 18, 2019 to file a legal brief for this case. Due to this quickly upcoming deadline, it is possible that DHS may issue a proposed rule to rescind the H-4 EAD program and seek to end Save Jobs USA v. DHS.
DHS must first receive clearance by the Office of Management and Budget (OMB), publish the proposal, and then provide a period of 30-60 days for public comments from organizations and individuals. Once this public comment period closes, DHS will review the feedback and prepare a final rule. This final rule must be approved by the OMB before final publication and implementation.
At this time, the details of the proposed H-4 EAD program rescission are confidential. The proposed rule is expected to specify when DHS would no longer accept new H-4 EAD applications and provide an ending validity date for work authorization for those who currently have an H-4 EAD.
At this time, DHS is expected to continue to accept and adjudicate new H-4 EAD applications and renewals until the regulation to rescind the H-4 EAD program is finalized and implemented. However, the termination of the H-4 EAD program could come within months of the release of the proposal.
Our office will provide updates regarding this matter as soon as they are available. Please do not hesitate to contact our office with any questions.