Last Updated : Today – December 9th, 2018. Check Timeline for full status updates by date. Scroll down for latest H4 EAD news update.The article covers below aspects:
- Background to H4 EAD Rule
- What’s H4 EAD Lawsuit filed in court ?
- H4 EAD and Trump Administration actions history timeline by date from 2017, Latest News
- H4 EAD Revocation common FAQs – validity, can you apply, future applications, etc.
- H4 EAD Rule Revocation Impact Analysis and current state Summary
- User Comments – Heated discussions
Background of H4 visa EAD Rule :
For many years, since the H4 visa program inception, H-4 holders have not been provided with any work authorization. This changed on May 26, 2015 when USCIS passed the Employment Authorization for Certain H-4 Dependent Spouses rule. The H4 visa dependent spouses were eligible for work authorization EAD provided the H-1B spouse satisfies one of the below two:
- Have an approved I-140, which is the immigration petition for foreign citizens to get Green Card or Permanent Residency in USA.
- Have H1B visa status extended beyond 6 years under AC21 Act, which allows H1B holders seeking Green Card to work and stay in USA beyond 6 years, if their Green Card or Permanent Residency Application is Pending.
Soon after the H4 Visa EAD Rule was enacted, two things happened:
1. Thousands of H-4 spouses applied for H4 visa EAD ( Employment Authorization Document) and got their first chance to work in US after many years of staying at home.
2. A lawsuit was filed against the H4 EAD rule to stop it from going into motion. More details on H4 EAD Lawsuit.
What’s the H4 EAD Lawsuit ?
‘Save Jobs USA’ (an organization comprised of IT workers who claim they lost their jobs to H-1B workers) filed its lawsuit against Department of Homeland Security (DHS) on April 23, 2015 before the rule was about to go live. The lawsuit was initially dismissed by a Federal district court in September 2016 (check references below ) as “Save Jobs USA” could not defend their lawsuit that H4 EAD holders will impact them. The plaintiffs, who is ‘Save Jobs USA’, filed an appeal to the United States Court of Appeal for the DC Circuit. The plaintiffs, claim two things:
1. The new rule has no protections for US workers and increases the pool of workers looking for jobs
2. DHS never had the authority to grant EADs to H-4 visa holders.
H4 EAD & Trump Administration Timeline, Latest News :
Since President Trump’s administration took office, there has been lot of speculation and rumors about what will happen to H-4 visa EAD rule. Below is the timeline of what has happened since President Trump took oath:
- February 2, 2017 : The Trump administration requested ( filed a motion) a 60 day abeyance (state of temporary inactivity ) to consider the issue and submit their brief ( response to consider the case).
- April 3, 2017 : The administration asked ( filed a new motion) for additional 180 day abeyance(state of temporary inactivity ) before they can provide their opinion. The Trump administration will update court every 60 days on the issue and update court before elapse of 180 days.
- June 23, 2017 : The appeals court granted a stay on Jun 23rd, 2017 and asked both the parties, SAVE Jobs USA and DHS to file further motions on how they would like to proceed with the case by Sep 27, 2017.
- September 20, 2017 : SAVE Jobs USA has filed its motion stating that DHS has not taken any action and no publication of rule has been done in Federal register related to the H4 EAD rule and they requested for oral argument to conclude the case. They continue to tell that the delay would hurt american workers and new litigation would begin again.
- September 27, 2017 : DHS ( Trump administration) filed a motion and requested the appeals court to hold the current H4 EAD case again in abeyance( which basically means hold on temporarily in suspension ), until December 31,2017. The whole reason DHS have asked for this extension is to ensure that DHS and administration align their entire approach to implement Trump Executive Order 13788 on Buy American Hire American and consider how to handle the H4 EAD rule as part of overall view. For source, you will need PACER Login to view the entire document on court’s website. Below is a screenshot of the actual info.
- November 17, 2017 : There was a new request to extend the deadline, but court has denied the extension and has asked to continue and proceed and file their motions by January 2nd, 2018. See below
- November 21st, 2017 (Unofficial – News) : A News article on Breitbart news says that there is a regulation drafted by DHS and is on the table to end the H4 visa EAD program. Until we see this published, it is still a rumor. You can read the News on Breitbart.com . There are so many speculations all over the place, please take every news with a pinch of salt.
- December 14th, 2017 ( Official ) : DHS has published an agenda item “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” today in the Fall 2017 Regulatory agenda. Basically all it says is that they intend to amend the original rule published for H4 EAD Rule in 2015 and potentially remove it as per the Buy American, Hire American EO by Trump Administration . It states that the DHS Secretary has authority to do as per INA regulations. Not many details published except that it is part of the agenda and they plan to remove it. We have no details on what happens to current H4 EAD holder working. As of today, basically nothing changes as it is in proposed rule state. We can expect progress or update on this in February 2018. Below is a screenshot on what you see on regulations.gov You can check the actual official info at Reginfo.gov
- December 22nd, 2017 ( Official ) : Both DHS and SAVE Jobs have filed respective motions, one to hold the case in abeyance (hold), other fo oral argument and not hold the case in abeyance. Below is quick summary.
- DHS Motion Summary : DHS has filed a motion to hold the lawsuit in abeyance ( basically on hold/suspension ) as they are in regulatory process of implementing the “Removal of the H4 EAD” and they plan for Notice for proposed rule making ( NPRM) in February 2018. They say that having an oral argument now is of no use, when the H4 EAD rule is going to removed with regulation. As they are in process of removing, they are asking more time and will inform court in July, 2018 on the progress. You can check the document link in Official Documents section below.
- SAVE Jobs Motion Summary : SAVE Jobs argues that in the first place DHS never had the authority to implement the H4 EAD rule without an act in Congress. They say that the regulatory process will take years, as the previous H4 EAD rule making took over 2 years from publication in regulatory agenda, and it will impact many of the Americans. Also, this process will lead to more lawsuits around the DHS rule to remove H4 EAD. The best path is to have oral argument and have a judgment.You can check the document link in Official Documents section below.
- Current Status : Court is yet to review and give a decision on the motions filed by both. We will keep you posted.
- Official Documents : You can read both the documents at H4 Visa EAD – Official Court Documents DHS, SAVE Jobs.
- January 5th, 2018 ( Official ) : Many are waiting still for the update as we are past Jan 2nd, 2018 ,which was when we are supposed to hear something from the Court. As of now, there is no update on the case. We have checked court case updates, nothing has been published. Just to give you a perspective, the court has responded at least over 1.5 month after the motions were filed. As you can see below the actual court updates from the case on Court’s website, I have highlighted the one in RED, where court responded to the Motion filed. Now, if the same trend continues from court, we may not hear back anything end of January or February. Of course, just guessing here based on history. We will keep you posted, once there is an update. As nothing has happened, it can be assumed that Court has given DHS until July 2018 to hear the update. Again, we need official court response, will let you all know, once updated by court.
- February 21st, 2018 ( Official ) : After a very long wait, finally today there is an update on the case by court. They have ordered the case to be held in Abeyance ( basically hold) and denied the plea of oral argument by SAVE Jobs. As you can see below, they mention that, the reason for their decision is that they see the plan of rule-making by DHS to propose rule to remove H4 EAD in February 2018. DHS is asked is report status on the H4 EAD rule within 90 days from the order day, which is today Feb 21st, 2018 and also every 90 days after that. Basically, DHS has to file an update with Court by May 22, 2018 on the H4 EAD rule-making. Now, as far as the rule-making from DHS, nothing has been sent to OMB yet for review. So, we need to still wait.
- Official Documents : Read Official Docs at H4 Visa EAD – Official Court Documents DHS, SAVE Jobs.
- Next Steps : DHS to update Court regarding H4 EAD rule making by May 22, 2018.
- H4 EAD Removal Rule Making Status : No rule is sent to OMB for review yet. Need to wait.
- February 28th, 2018 ( Official ): DHS filed a status report with the DC Circuit Court stating that upon review by USCIS, they believe that draft of the regulation need to be revised further and they need some more time until June 2018.hey anticipate that it will be June 2018, when they can submit the proposed regulation to Office of Management and Budget for review and clearance in time for publication. The court document says that the decision to remove H4 EAD using regulation does not change, but they need more time. See below the document with sections highlighted.
- Official Documents :Read Official Docs at H4 Visa EAD – Official Court Documents DHS, SAVE Jobs.
- Next Steps : DHS to update court regarding H4 EAD removal regulation rule making process in next 90 Days, maybe end of May 2018.
- H4 EAD Removal Rule Making Status : Regulation will be revised further and send to OMB by June 2018. Need to wait.
- March 26th, 2018 ( Official ): Few of the Members of Congress wrote to USCIS Secretary requesting to reconsider and not revoke the H4 EAD rule. But, USCIS responded saying just that, they are working towards the president’s goal of Buy American and Hire American and everyone will get a chance to submit comments during the rule comments period to submit feedback. See below. You can check the actual Request Letter and Respond from USCIS
- April 4th, 2018 ( Official ): USCIS Director wrote to Senate outlining various H1B and H4 changes in a letter and plans of USCIS. It also talks about their intention to remove H4 EAD and the regulation in planning. Below is the screenshot of the exact info. It clearly tells that they plan to remove it with regulation and public will get a chance to provide feedback during comment and notice period. Check original document of USCIS Letter sent to Senate Judiciary committee
- May 10th, 2018 ( Official ) : H4 EAD Rule removal is now part of Spring 2018 agenda and the timeline has been updated to June 2018 for rule proposal and comment period. The current rule published in RegInfo.gov does not have much changes, except there is no need justification in the current rule proposal. See below the comparison. The green highlighted one is not there is Spring 2018 rule info. Check the actual rule info at Reginfo.gov Spring 2018 H4 Removal Rule
- May 16th, 2018 : A group of 130 members of congress lead by Rep. Pramila Jayapal and Rep. Mia Love, signed a letter to the DHS asking Trump administration to reconsider its plans to remove H4 EAD rule for certain spouses of H1B. You can read actual : Singed Letter H4 EAD
- May 23rd, 2018 ( Official ) : Despite all the letters, etc. nothing has changed from DHS/ USCIS in their stance towards the rule removal. Yesterday, DHS filed an update with the court indicating their stance and the progress with H4 EAD removal rule. It is a simple update and tells that the H4 EAD rule removal is in final clearance and will be sent to OMB for review and their plans remain unchanged for publication of NPRM for H4 EAD Removal Below is the most important piece of info clipped from the court document. You can check full Official H4 EAD Court Documents
- August 20th, 2018 ( Official ) : USCIS updated court on their latest status indicating that final DHS Clearance review is ongoing and its intention/ stance on the issue remains unchanged. See below screenshot from the exact ruling. In general, the OMB review process takes anywhere from a month or more, so we may expect the ruling around in late September 2018. You can check the full document at Official H4 EAD Court Documents
- September 11th, 2018 ( Official ): SAVE Jobs USA has filed a motion in court asking the court to conduct briefing and oral argument very soon. It is pretty lengthy 11 page document submitted by SAVE Jobs USA that highlights the delays and says nothing has moved in the last year and half and if it goes at this pace, it will take years for this case to be closed and they say “Justice Delayed is Justice Denied”. Also, they say that there could be another litigation as well, if the H4 EAD is removed, so they are asking for oral hearing to clarify one simple question if DHS had the authority to give H4 EAD without Congress approval. The key info is highlighted below in screenshots. If you are interested in reading the actual filed Motion Document, you can check it out at Official H4 EAD Court Documents
- September 21st, 2018 ( Official ): In response to SAVE Jobs motion filed earlier this month, DHS submitted in court their response requesting to hold the case as it is as they are making swift progress. DHS’s senior leadership has reviewed and proposed some changes and they plan to submit the rule to OMB within 3 months. DHS argues in the response document to all the concerns raised by SAVE Jobs USA in their motion regarding more jobs lost, future litigation, etc. The overall message DHS says is that, it is in best interest of everyone to hold the case hearing on hold until the process is completed as it would waste court’s and everyone’s time as their intent has not changed and they are making swift progress. The key info is highlighted below in screenshots. You also read the actual response document at by DHS at Official H4 EAD Court Documents
- October 16th, 2018 ( Official ): Senators Harris and Gillibrand wrote a letter to USCIS on Sept 26th,2018 regarding H4 EAD removal to reconsider as it will create extreme hardship for many families. USCIS responded officially to their letter stating that their priorities are to implement President Trump’s Buy American Hire American policies and safeguard US workers, stating that there will be comment period for everyone to provide feedback. You can check Official Letter from USCIS for Senator Harris
- October 17th, 2018 ( Official ): Fall 2018 Regulatory agenda was published and it included H4 EAD rule removal as one of the agenda item. DHS is looking to propose NPRM for H4 EAD rule removal in November 2018 as per the update. We are just waiting for the rule to be published. Check more details of Fall 2018 Regulatory Agenda – H1B, H4 Impact Summary
- November 16th, 2018 (Official) : A new bill called “H4 Employment Protection Act” was introduced in House by Reps. Eshoo and Lofgren. The whole idea of the bill is to stop Trump Administration from Revoking / Removing the H4 EAD Bill. It talks about hardships and benefits. Still very early stages, not much to predict. You can read Summary of the H4 Employment Protection Act, Status, Impact
- November 16th, 2018 (Official) : Also, semiannual regulatory agenda with H4 EAD rule removal info was published today in Federal Register. It is under sequence number 299. The NPRM is not yet published.
- Dec 9th, 2018 : Latest update for today regarding H4 EAD News is that we do not have any official update on anything. There was a status report due to Court on Nov 19th, but nothing was sent to court. We are expecting that DHS would very likely publish the rule for OMB review by December 21st, 2018. The reason is that they have mentioned that to the court on September 21st that they would file it to OMB within 3 months and that day would be Dec 21st. Check DHS court documents and above updated from September 21st screenshot of official court.
What is the H4 EAD Removal Estimated Timeline, Predictions ?
Every proposed rule has to go through Standard 9 Rule Making Steps in US to become law, in our context H4 EAD removal also has to go through the same steps. We have outlined the entire rule making process and mapped it to current H4 EAD rule removal progress. Also, based on data and varying speed, we have done predictions on when we can estimate the rule to be removed. Read article H4 EAD Rule Removal Estimated timeline Predictions for all details. In short, looking at all current situations, we predict that, it may take an estimated amount of one year or more for H4 EAD to be removed. With current political climate and new H4 Employee (EAD) Protection Act Bill in House, things can change anytime and slow down quite a bit, stay tuned
Common H4 EAD Rule Removal FAQs
Can you still apply for H4 EAD ? Can you work on H4 EAD, when this revoke rule process is going on ?
Yes, you can continue to apply for H4 EAD and work on H4 EAD. Still the rule is in very early stages and until the rule completes comments, review and it becomes final, you can apply for H4 EAD and work on the same.
Will your existing H4 EAD be valid after USCIS/ DHS implements the H4 EAD Rule revoke or removal ? What happens to my EAD ?
Well, it is hard to tell what USCIS will do once they implement the final rule to remove the H4 EAD. They will publish the guidance on the impact and what happens to existing H4 EADs and their validity, we need to wait and see. Having said that, in the past for DACA and other similar rules, DHS let the existing EADs be valid until they expire, which technically let them work until their full validity. So, we can speculate similar aspects for H4 EAD and may expect that H4 EADs will also be allowed to work until they expire or until the end of the validity period.
Should I apply for Change of Status from H4 EAD to H1B to continue my work ?
Well, it does not hurt to apply for H1B, if your employer is willing to sponsor H1B for you in the upcoming H1B Visa 2020 Season. It gives you an extra backup option to work, if something happens to H4 EAD and USCIS does not let H4 EADs work until the expiry date after rule is removed. You should consider applying for H1B visa petition with Consular processing, instead of change of status from H4 to H1B, as it will give you an option to work on H4 EAD, until it expires and switch to H1B only, if needed after expiration. If you get picked in H1B visa lottery and have approved H1B, then you can apply for Change of Status to H1B and work as needed. Discuss with your employer and see, if this can be done.
Can any of the groups file a Lawsuit against DHS regarding H4 EAD Rule Removal ?
Well, it all depends on what comes out of the rule-making process. Putting up a lawsuit is something many groups may be considering and all of them are waiting for the outcome of the current process. As you know there is already we have H4 Employment Protection Act, Status, Impact in house supporting H4 EAD to exist…Overall, we can speculate lawsuit, but it is too early to say…
Summary : H4 EAD Rule Revoke by Trump Administration – Impact Analysis ? Can they revoke ? Estimated time ?
It all started with a lawsuit by ‘Save Jobs USA’, that questioned the authority of DHS to grant EADs for H4. After Trump administration took office, they took charge of the lawsuit, took time, delayed the process and finally aligned to remove H4 EAD rule in line with Executive Order of Trump Buy American, Hire American. They made an item “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” , as part of Spring 2018 Regulatory Agenda and continued the same in Fall 2018 Regulatory agenda indicating their intent to remove the rule and communicated the same to Court as well and requesting more time not to go for oral hearing.
Many attempts were made in the meantime by Members of Congress, Many other groups including CEOs of companies, writing letters to USCIS to re-consider and not remove H4 EAD and the hardships it will create to many, but all of them were politely replied saying their intent is to align with Trump’s Executive order priorities and public will get chance to put in their comments during rule removal process. USCIS has been delaying this as they know they have to be very thorough to submit to OMB and then to public. The last official update to court is that they will send the H4 EAD rule removal to OMB for review by Dec 21st, 2018. On the other hand, we have now new bill in House to protect H4 EAD holders. With Democrats, having the majority in house, this also can play a part.
Overall, as of now, H4 EAD rule is still set to be on track to be removed by DHS. We can anticipate to have it sent to OMB for review by end of December 2018 and then very likely for comments in January 2019. If this H4 EAD rule removal is implemented, it will have a significant impact to many of the thousands of H4 holders working and they need to plan for backup options like H1B. As it stands today, you can apply for H4 EAD and work on the same, nothing is stopping you from that until the rule is final and USCIS mentions that you cannot work. As far as our estimate based on 9 steps of rule making process, we predict the H4 EAD rule removal timeline for October 2019
What are your thoughts ? What do you think of new H4 EAD protection Act ?