H4 EAD Rule Latest News - Trump Administration Revoke and Lawsuit Status

H4 Visa EAD 2018 News – Lawsuit Status, Trump Administration Impact

In Immigration| Visas by Saurabh2149 Comments

Last Updated : May 23rd, 2018 . Check Timeline for full status updates by date.

Background:
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 – 
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. H4-EAD-Lawsuit--Update-Extended-till-Dec-31-2017
  • 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 belowH4 EAD News Update - 2017 November for January 2-2018
  • 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.govH4 EAD Work Rule Amendment 2017 Fall Agenda
  • 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.
      H4 EAD Update February 2018 - Case to be Held in Abeyance
    • 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.H4 EAD Update Lawsuit March 2018 News
    • 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 H4 EAD USCIS Updated Secretary April 2018
    • 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 H4 EAD April 2018 News Update
    • 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 RuleSpring 2018 Regulatory Agenda H4 Visa EAD Rule Removal
  • 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 H4 EAD Rule News Update May 2018 Latest Court Update

What Happens Now – Can H4 EAD be revoked by Trump Administration ? What’s the Impact ? Current Status ?
Spring 2018  Regulatory Agenda: As you can see most recent update above, we have agenda item called “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”  that it is now part of the Spring 2018 Regulatory agenda. It was initially part of Fall 2017 agenda with a timeline of Feb 2018, but due to the complexity of the rule DHS asked for extended timeline with court for lawsuit and since then the timeline in the Spring 2018 regulatory agenda is updated with NPRM set to happen in June 2018.   Keeping the H4 lawsuit aside, now it has moved to a stage where the it has published agenda item to remove the H4 EAD rule.  June 2018 is the timeline for the rule to be sent to OMB for review. DHS and USCIS are working on the draft rule to send to OMB for review.   Until the new rule is published, we do not know much on what would happen to the current H4 EAD holders, etc. So, kind of unknown at this point. But, you can continue to file for H4 EAD, nothing is stopping you.

Members of Congress Letters, Requests – March, April 2018 News : Also, in the end of March many members of congress wrote to USCIS to reconsider removal of H4 EAD, but USCIS responded that they are framing many policies based on Buy American and Hire American EO and public will be given chance to give comments. Also, similar letter was sent in April, to Senate judiciary committee indicating that USCIS is in process of publishing regulation to remove H4 EAD. The overall message from USCIS is that they are clear on publishing regulation to remove H4 EAD. We have to wait and see, what they will do with the comments.

May 2018 News Update : Despite all the letters from members of congress, the most recent update from DHS to court on May 23, 2018 is that they will go ahead with NPRM once the final clearance is complete.

H4 EAD Lawsuit Update: On the lawsuit side, Court ordered on Feb 21st, 2018 to hold the case in Abeyance ( basically hold) and asked DHS to report the status within 90 days on the H4 EAD removal rule-making. Also, court denied the motion by SAVE Jobs for oral hearing…  As updated above, DHS updated court that they need more time to send the draft regulation to send to Office of Management and Budget (OMB) for review regarding the rule. We do not know for sure the timelines of the changes and if there will be any lobbying… if you are on H4 EAD, it is good to have a back-up plan for the worst case scenario.  We will keep this article updated as new information emerges.

What are your thoughts ? What do you think of new Spring 2018 regulation update ?

Reference :

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Comments ( 2,149 )

  1. Aspiring H1B

    H4 EAD game over.

    Looks like H4 EAD recission is still on DHS agenda as of 6/11/18 per the following:

    https://www.federalregister.gov/documents/2018/06/11/2018-11247/unified-agenda-of-federal-regulatory-and-deregulatory-actions

    https://www.am22tech.com/h4-ead-news-termination/

        1. Reethu & Keethu

          Invitation from Reethu & Keethu
          As H4 EAD will be gone soon. We have already opened “Reethu & Keethu Naak Ka Bal/Armpit Clean Shop”.
          H1b , GC & US Citizens are invited to our shop as Customer. H4 EAD, Please excuse us. H4 EADs can join us as an employee.
          Thanks
          Reethu & Keethu

          1. Reethu & Keethu

            We (Reethu & Keethu) are very skilled in cleaning armpit and nak ka ball. We have already practiced this skill on each other. You all are invited to our shop except H4 EADs.

            Thank you
            Reethu & Keethy Inc

    1. Reethu

      Hi Bro, I got H1b this year. & I am not IT, QA. like you guys. I am an Electronics design Engineer. So no need to worry 😀

      1. Reethu & Keethu Inc USA

        Sister Reethu,
        You can still join and contribute your skills to Nak ka Ball/Armpit clean shop. You are more then welcome. Please don’t shy away to show your skills in which you are best in best.!!

  2. Looking for naak business partnership

    Naak baal business partnership with naak baal ki maka sakinaka..this is approved…
    Armpit cleaning business is looking for business partnership….

      1. Madras ka mausambi

        Hey chennai ka choo – sounds like you r on h4ead therefore you will be the right fit for all of my current job openings at my naak shop…..

        1. ExpressJS Hero

          hahaha seriously dude, you don’t really need 5 full-stops after every sentence. Do you never learn?

          Go back to 3rd grade you fool.

  3. Real Insider News as on 15 June 2018

    Real Insider News
    —You had been posting on H4EAD’s to stay —so here is the latest news on H4EAD -from Trump Administration

    https://timesofindia.indiatimes.com/world/us/trump-administration-reconfirms-its-intent-to-rescind-h4-rule-on-spouses-of-h1b-visa-holders/articleshow/64599467.cms

    Few Notes from above link:
    WASHINGTON: The Trump administration has reconfirmed its intent to rescind the H-4 visa rule on employment authorization to certain spouses of H-1B visa holders, a proposal that could hit tens of thousands of Indian women in the US.

    https://thinkprogress.org/baltimore-skilled-immigrant-teachers-trump-crackdown-h1b-visas-6a0cba008557/

    Go through above links and it is confirmed that H4EAD will soon be ended….For all H4EAD’s better have a backup plan as soon as possible to avoid risk….

    1. Sam

      In the article, she said: In spite of her higher education and prior professional experience, it took her almost a year to find a job in her chosen profession.
      My cousin graduated from UC, and took him 3 years to get a $23/hour temp job. Its all because of these H4EADs. If H4EAD has talent, they can apply for H1b, or go home.
      We don’t want to compete with the most talent people from all over the world. We have the choice.

      1. Legal

        If companies are willing to hire the low cost wagers who has the skill and talent to do the job, you cannot stop it. Though you stop H4 EAD, companies will always have an alternate route or back up plan to hire them in some other way. So change your mind set. BTW applying for H1 is not related to talent alone, you have limited numbers on cap. If H4 EAD goes away and then government proposes to raise the H1 Quota it is more safe for all temporary workers. Even though companies try hiring locals as H1 visa holder works for less wage they will go with them.

        Good Luck

          1. Desi dude

            @ ‘American’ dude: Yes. Replace the hyphen with a comma and the ‘can’ with a ‘could’. Douchebag.

  4. Ansh2112

    Hello All,

    So first of all those who are saying that H4EAD holders do cheap labor, yeah right, few do but not all and it’s exactly like when citizens work in Walmart for less than $15/hour, so just remember it’s your skill not your visa. Secondly, H4EAD (even H1) brings so much business and tourism in USA, immigrants buy real estate, they have good buying power and they promote employment too. Don’t know why are people cribbing about H1/H4 taking jobs as unemployment is lowest right now. Lastly, who calculated that every year 85k H4EAD holders will add to the population? what are your basis? just because a total of 85k H1 are allotted that doesn’t mean same number of H4EADs. Also, those who haven’t noticed in past 2-3 years USCIS isn’t giving 85k visa, in fact these are just the ones who got in lottery but when it comes to giving visa actually it is way less than 85k. check your facts please.
    In my opinion H4EAD is a good thing as it gives opportunity to be financially stable and also more money means more spending and hence helping US economy to get better.
    Thanks

    1. rockram

      What kind of comparison are you making..It doesn’t make any sense for me. Walmart paying $15 might be their standard hourly rate for everyone..But, when it comes to IT, The actual billing could be some where from $45 to $85 and people quote very low to get in to the jobs by multiple vendors which in turn decreases the chances to get a project for a qualified experience person and the main issue with the H4 EAD is that they can work for any employer without sponsorship. whereas, a H1, who went through all the struggle can’t work independently .

      1. Facts

        I challenge you to name one major IT company which has hired a person on H4 EAD and is paying them $15 per-hour. You guys are just looking for an excuse because you are afraid of the new competition.

        Stop blaming others for your own shortcomings and work on improving your skills. You are not a ‘high skilled’ worker anyway if you can be replaced by someone much junior.

        That’s capitalism 101 for you.

    2. Alok Niranjan

      Hey Ansh2112-send your post to trump and his immigration team,USCIS is following “hire american,buy american ” policy ro revoke h4ead work permit…..since uscis and trump admin has enough evidence that these h4ead’s are taking away jobs from americans and it is hurting US economy…. that was the reason the USCIS will be issuing a policy to remove h4ead from work permit……

  5. r

    So i guess antih4ead folks are advocating the below facts.

    1. Bring a talented person to US on h1b.
    2. Break his/her family by not allowing his/her spouse and children any benefits.
    3.Make this person teach his/her skills (he/she acquired after lifetime of hardships) to unskillful pool .
    4. By the end of h1b , unskillful pool has become skillful and so time to kick this h1b out .

    Let me ask you what does this do to great American superhero image.
    Is this justice or humane in any way.

    1. Ash

      Hey R…..It looks like you are frustrated…
      Please do not forget the fact that someone applying for H1B or entering USA on H1B is completely voluntary…if it’s not voluntary then it will be called as modern day slavery… No one forced you to accept H1B…..So please do not bring powerful words like Justice and Humane into the debate….

    2. EndH4H1

      @r..your first statement itself is incorrect. Nobody brought you here. It was a mutual agreement that you come here and work and you accepted it. You always have a choice to go back and serve your country. I am amazed you have courage to blame it on America….

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