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

H4 Visa EAD 2017 News – Lawsuit Status, Trump Administration Impact

In Immigration| Visas by Saurabh102 Comments

Updated on September 27th, 2017

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:

  • 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:

  1. 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).
  2.  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.
  3. 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.
  4. 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.
  5. 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

What Happens Now – Can H4 EAD be revoked by Trump Administration ? What’s the Impact ? Status ?
This is where things get tricky…It is hard to predict at this point. The Trump administration may decide not to challenge the H4 EAD lawsuit, or they may continue to fight it. I am not a legal expert, but I think there is a possibility of someone else to step in (for e.g. AILA) in case administration decides to roll back the rule. Until the Trump administration makes it stance clear, its business as usual, all H-4 EADs would remain valid, you can apply for H4 EAD, if eligible, and new EADs would continue to be adjudicated by USCIS. The current motion filed by Government for 180 days time does NOT impact the current rule in any ways, until any judgment is given by Court.

My advice would be to not fall prey to gossip and speculative rumors on revoke of H4 EAD rule by Trump Administration; and if you are on H4 EAD then have a back-up plan for the worst case scenario.  I will keep this article updated as new information emerges.

What are your thoughts ?

Reference : Court Document of Actual Court Case File in Sept 2016

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Comments ( 102 )

  1. MNFS

    Hi,

    I am on H1 and my company started my PERM (recruitment ended and about to file PERM application) process and I got promoted now within same department without change in job duties, do you think PERM should be starting all over again, or its fine to continue since my job duties remain same.

    Thanks,
    MNFS

  2. PP

    PP for all H-1B Petitions resumed:

    https://www.uscis.gov/news/news-releases/premium-processing-now-available-all-petitioners-seeking-h-1b-visas

  3. Ram

    DHS has now requested the appeals Court to hold the H-4 EAD case in abeyance AGAIN through December 31, 2017, to permit it to complete the review mandated by Executive Order 13,788

      1. Ramsingh

        Go to this site and read both the motion and the documents. If you have access to the legal commentary, you can read it as well.

        https://www.perchingtree.com/h4-ead-court-case-status-update/

      2. administrator
        Kumar

        To make sure all are on same page, the source of the documents for are available on the Courts website, but they require free registration of account and only individual have to login and view the documents. They are not supposed to be posted publicly unless it is a published opinion by court. Hence, we are not posting any documents here as source.
        While other sites like perchingtree have posted such documents, it is violation of court policy to publish such documents without court permission. If you noticed, none of the attorney’s like murthy.com, immigrationgirl, etc. have not published any such documents or linked because they are not allowed by court.

        1. Sam

          Court filings are fair use document and you can read more about it here. http://blog.ericgoldman.org/archives/2014/07/republishing-litigation-brief-is-fair-use-white-v-westlaw.htm

          1. Sam

            Please cite the court policy that prohibits publishing of litigation briefs. Do not provide wrong information to your readers.

    1. Kambikaran

      Check latest filing report today. H4EAD will not be cancelled and will continue for another 18 months. Congress must pass the Raise Act. To all the naysayers, this proves that H4 EAD is here to stay.

    2. Sam

      I am a lawyer and fair use of public documents and court filings are allowed. However, you cannot use for them profit. If the filing parts requests for their filings to be be sealed, then, they are sealed and cannot be published in public domain.

  4. Karthik

    Heard today from a friend that DHS has filed a motion today 20 Sep on this case. Does any one know what is in the motion. Are they keeping H4EAD or revoking it.

        1. TrackingH4

          You may want to track this case on these sites.

          https://www.perchingtree.com/h4-ead-court-case-status-update/

          and this one (Subscription Required)

          https://www.law360.com/articles/909181/agency-asks-dc-circ-to-pause-h-4-rule-appeal

  5. Karthiken

    I heard today that DHS has filed its response to the H4 EAD court order planning to revoke all Executive Orders STEM OPT, H4 EAD and DACA. Does anyone know if this is true.

  6. Pravin Chaudhari

    HI,

    Just came in US on H1B, its valid upto 1SPe19. My wife is coming on H4 dependent visa. She has completed her BE and having 1 year exp. Will they allow her to work.

    1. Ram

      If your Green card process is initiated and you have your i140 is approved, then she would be eligible for H4 EAD after which she can work. If not, she is not authorized to work here on H4. However if interested she can pursue higher education here.

  7. Bina

    My daughter was on student visa and done her masters in finance.Aafter finished her masters she did not get approval of lottery H1b visa.so she went on dependent visa.This year she was selected in Luckydraw but again USCIS send RFE that your qualifications are not match with your salary
    So please give me suggestions what to answer
    As my daughter ‘s education qualification….CA,CPA,MS in Finance,CFA 1st level

    1. administrator
      Kumar

      Bina,
      You need to work with the attorney and there is no blanket answer. Your immigration attorney who filed the petition would be the best person to advise and take care of the situation.

  8. ProBan

    Moderator/ Saurabh,

    Sunday 27SEP17 is approaching.
    Are you or any one aware of what is happening or going to happen to the H4-EAD court case?

      1. Karthik

        The link shows that no new filing has been done after 23 June. Any idea if this will be revoked and if yes, will it be revoked using an EO or through the courts.

  9. Shyandra

    Hi Saurabh,

    I have been in US for 2 months on H4 and i have 7 years of IT experience. I am looking forward to continue my career in US with employment authorisation.
    Could you please suggest either good to apply for H4 EAD or F1(student VISA) or my spouse can sponser for my H1B?

  10. KARTHIKA RUKMANI RAJASEKARAN

    I currently have H4 EAD and doing my Masters now. As I’m planning to graduate in this Fall’17, I’m in dilemma if I should apply for F1 student visa (through change of status) to be in a safer side as the future of H4 EAD is unclear.

    What would you recommend in this situation? Should I stay in H4 EAD or convert to F1? Also I’m not sure how long would it take for the change of status to get approved.

    Please let me know your inputs.

    1. administrator
      Saurabh

      KARTHIKA RUKMANI RAJASEKARAN,

      I would say move to F-1 and get OPT. If H-1 doesn’t work out and H-4 EAD is still intact, then you can always fallback on this.

  11. H1B to H4.

    Hello,

    My situation is as below:
    – Have valid H1B for till 2019
    – Want to apply for H4 (with intention of applying for EAD eventually)

    Question:
    – Can I continue to work in my H1B, after my H4 is approved and (applied for and) waiting for H4-EAD to come in hand ?

    Thank you and I appreciate all your help and response in this case.

    1. administrator
      Saurabh

      H1B to H4.,

      I would suggest to apply for H-4 COS and EAD together. This way they would be approved together. So you can work on H-1 until H-4 COS is approved, and then start working on H-4 EAD.

      1. Anusha

        Hi Saurabh,

        Is it a wise decision to change from H1 to H4EAD in this situtation. If the H4EAD is revoked in future. Can we flip back to H1B again.

        1. H1B TO H4EAD

          That is a good question and I have thought about it as well.

          A follow up question from me will be – Do I have to go through the lottery again if I want to apply for H1B later (again) after I have switched from H1B to H4EAD ?

        2. administrator
          Saurabh

          Anusha and H1B TO H4EAD,

          If you had H-1B previously and then move to H4 (w/ or w/o EAD), you can move to H-1B w/o going through the lottery. You will be considered cap-exempted and any employer can file H-1B petition for you anytime w/o worrying about the lottery/cap.

  12. Mitts

    Hi

    I am on H4 Ead .I did not take away any american job .I am applying to Jobs which match my profile and giving interviews with americans .Although hard luck till now.You cannot tell all Indians fake their resumes

  13. HT

    HI,

    KINDLY NEED HELP…!

    I am on H4 , last year i had applied for H1B and picked in lottery but still waiting for approval. Its been a year now waiting to it don’t know whether it will get approved or not.😔😔this year my spouse’s H1B is eligible to applying H4 EAD.
    So as back up I wanted to know can I apply for H4 EAD while I have applied H1B? Whether it will create any problem my status?

    Thank you..😊

    1. administrator
      Saurabh

      HT,

      You can apply for H-4 EAD. If H-1 gets approved w/ COS, then EAD would be declined. If H-1 is denied, then EAD would become the back-up.

  14. Ruhi

    On one side you think that H4 EAD holders are taking away jobs of skilled Americans and on the other side you say that H4 EAD fake their experience and have no skills. So that means even with no skills and expertise , they take away high skilled jobs. What a joke !! Just use your brains and think before putting your views forward.

    If a american is so skilled then no H4 EAD holder can take away his/her job. It is just impossible to survive on high skilled jobs by faking skills and no experience in this fast paced world. One should not snatch the basic right of a person to work.

    Have faith in yourself and compete with whatever comes . Taking away the right to work from some one is not a solution. I SUPPORT H4 EAD !!

  15. Be_Smart

    Just go to indeed or any jobs site and look for IT jobs. There are tons of them out there. They don’t get filled for weeks and months due to lack of talent. These jobs then get shipped out to Romania, India, France and other European countries. That is loss of tax revenue in the US. Same holds for H4 EAD. It all sounds good when people get angry and say let’s keep the jobs. Companies work on deadlines and have to keep the shareholders happy. The ideal state would be to tighten the regulations and have an orderly process. Let’s not waste jobs and discourage companies in the name of nationalism. IT is a multi billion dollar industry in the US due to Americans and immigrants working together.

  16. Jaya

    Remove H4 EAD asap. 99% of them are not qualified, sitting at home and trying to learn something by using VPN on their H1 Spouse’s work computer.
    Go back if you don’t want to deal with this.

    1. Shali

      How can you generalize? Why do you think all H4 are always not qualified? I have 10 years of IT exp and I hold H4 EAD as well. Mine and my husband’s technologies and line of work are totally different. I can do nothing with his VPN.
      I don’t know with what level of knowledge you are talking with? I think one has to be sensible in writing the statements. You are nobody to decide who has to go and come. Everyone are capable enough to handle such matters when they have gone to the level of getting H4 to their spouse. You can mind such matters at your family level.

    2. Ruhi

      Looks like you are speaking from your own experience.
      Who are you to tell someone to go back !! If someone is not qualified, how can he/she snatch a job from a well qualified person ? Think before you speak !! And If you have so much trouble then you pack your bags and move out as you are the one who is not able to deal with it !!

    3. Jai

      I mean really. your name says “Jaya” must be indian and look at your words , seems like you will kill everyone if given a chance. Everybody has the right to work. No body is stealing jobs or opportunities. what you gonna do with this much hatred for your own people. I feel pity on you miss “Jaya”. Really so shameful

    4. JK

      Its employer judgement to decide who is qualified and who is not. Doesn’t matter if somebody learned from spouse’s computer. If you have learned it properly and can deliver to keep employer satisfied, its good enough. It seems like you studied some course in USA from some below average college and see H4 EAD folks as a competition for you. H4 EAD is 100% justified until the country cap is removed from green-card. Just because Indian’s have to wait so long for green card, the people on H1/H4 keep piling up. Please note that me or my spouse both are on H1, but we feel positive for H4 EAD. Also, how can you be so gender specific even men can be on H4.

  17. ravi

    all the ***** here talking about banning h4 eads have no idea what a h1b has to go thorough to survive in this economy with spouse and children’s, on one person’s salary. when you will be in their shoes then will talk about it.
    and the lawsuit filed by the savejobusa is total bullshit now data to support read the case. how can they say h4 ead is taking their jobs meaning bunch of sposues are able to over throw all these talented american IT workers that means they are really not that talented and have their jobs because of no competition and just by being us citizens crybabies.

  18. Sadhana

    Hi

    I have a question. I have applied for h4 ead renewal which will be valid till 2020. My question is, if h4 ead gets revoked in future, will I able to continue working with my current approved ead till it expires. I hope the future renewals will be stopped. Please clarify. Will rules apply retroactively?

    1. administrator
      Saurabh

      Sadhana,

      It all comes down to how the administration decides to roll back H-4 EAD (in case that’s their final decision). My best guess is they would let current EADs in place until their expiration date and not provide anymore EAD renewal/approval. We will have to wait for the administration to provide more guidance on this.

  19. FrustratedImmigrant

    Time to leave this country if this happens. It’s better to have two salaries in any other country including India vs having to depend on one here and live a sub par life of slavery until you get your GC (15 yrs wait time lol).

  20. ConfusedImmigrant

    What i fail to understand is why the H4 ead is getting so much attention when the dependents of other visa categories like L1 have had the work authorization for so long…why is there no outcry for that. H4 ead is for the dependents of future citizenz of this country and not temporary work force because it is granted only to those that have the 140 approved. Also, the notion that it only adds cheap labor is ridiculous as I know so many people with spouses who have years of experience and masters degrees that are now able to work and add to US economy.

  21. Joanne

    I am an american and I work in IT industry for 20 years now
    Although I am not opposed to H1b people, I have really bad experience about certain H1b people ( they call them Telugu or something).

    All they do is make fake resumes, and get jobs that they are not qualified for

    I already know some and have yesterday reported 8 of them to USCIS

    I advise you to do that too

    Regarding H4 EAD- its a basic right to get work permit when you have GC in progress

    1. Notanamerican

      @Joanne

      first of all, you are faking your identity and claiming here as an American, what a joke that you are reporting to USCIS about fake resumes

      No American citizen will waste time to visit Redbus2us and post shitty things

      1. ConfusedImmigrant

        @Notanamerican There is nothing wrong with what Joanne wrote. I am on H1B and I know lot of Telugu folks with fake resumes and fake experience and even a false immigration status, working in the IT industry. These people bring bad name to the already infamous H1B and should be reported. Also, no need to be butthurt over her comments, seems like you are one of those fake Telugu shameless idiot.

        1. sf

          I agree there are a lot of BS IT consultants floating around but not restricted to Telegu (although perhaps the majority) or one community but across the board comprising Indians, Chinese, Russians, etc.. They need to be weeded out..the majority of them have little to no expert skills or communication skills for that matter and such jobs are best outsourced, There’s no value to having these people work in the US on H1s rather than having them perform their routine tasks sitting in India.

          And yes they do give H1s, the IT industry and Indian IT workers a bad name in general…

        2. @TrueSpeaker

          I also agree with Joanne , I also seen in USA some fake telgu guys are taking advantage of H1 B Visa. Neither they have qualification nor experience. They shown fake high experience and get jobs easily. Just because of these people bad name spread for everyone who even are real, qualified and deserving.

    2. Indian by Heart

      US has 45 lakh Indians, out of which 6.5 lakh are Telugu = 14.4% of Indian Immigrants are Telugu
      India’s population is 130 crore, out of which 8.5 crore are Indians (highest south Indian language) = 6.5 % of Indians are Telugu

      Engineering graduates in US per year = 1 lakh in US
      Engineering graduates in India per year = 15 lakhs in India

      Engineers/ computer related of by language:
      Telugu: 3 lakhs to 3.5 lakhs
      Tamil: 2 lakh
      Kannada: 1 lakh

      In Andhra there are two options, Engineer or Doctor, all other professions are very minority. so, they go all over to graduate engineering in all other states possible. The Telugu number is always high, even in IITs/ BITS/ etc..

      Indian state wise:
      State—————->No.of Colleges of any type
      Andhra (Telugu)–> 5200 (20 lakh students) 95% of them are Telugu
      Karnataka ——–> 3600 (13 lakh students) 20% of them are Telugu
      Tamil Nadu ——-> 2500 (18 lakh students) 10 % of them are from Telugu

      so, looking at a brief states above, one must understand,
      Most of Engineers in India are Telugu at par with any others.
      Most of the IT jobs/ visa are for Telugu’s, whats wrong in it.
      Hyderabad has most of the Software training Institutes than any other place in the “World”, can you believe this? and that place is called, “Ameerpet”, where many people from other states/ countries come here to learn Software hands on. and so..on..

      Telugu community is bigger than many Nations:

      Japan = 12.5 crore
      Telugu = 8.5 crores
      Germany = 8 crore
      UK = 6.5 crore
      France = 6.4 crores
      Italy = 5.9 crore
      Canada = 3.6 crore
      Australia = 2.5 crore
      Spain = 4.6 crore

      Now tell me, why do you think a State that produces more engineers have its relative share in H1B too. Engineering education is the main graduation of Telugu people. we cant avoid it.

      Dont be racist on any one community, learn the stats before pointing some one. I am not Telugu, I am Kannadiga. Telugites are our younger brothers. We love them. Telugu people are very friendly, I have very good Telugu friends. Yes they are more in IT, but they are good.

    1. administrator
      Saurabh

      Aswini, Suprabhath

      Do you trust Murthy.com or do you think they also spread fake news. Here is what they mentioned about this filing.

      Or you can read the article on a new site like CNN here (but then some have labeled CNN as fake news).

      1. Aswini

        Hello Saurabh and Admin,

        Ok, the DOJ has extended time frame for the DHS to decide upon the rule. I do trust Murthy.com and you are absolutely right about CNN. Thanks for your clarification! Please accept my apologies.

  22. Ram

    When compared to more than 155 Million people in workforce, percentage of H4 EAD workers is very less, roughly 100-130K. The lawsuit makes no sense because
    1. These H4 EAD workers are not all in IT, some are doing business, research and several other fields
    2. These H4 EAD workers are not all at one location to be impacting job search
    3. DHS does have authority to make decisions for employment, that is reason whole rule making process was followed and there were more positive comments than negative
    4. A small percentage of H4 applicants are eligible for this employment authorization, NOT all, H1 petitioner should have I-140 approved or applied past year.

  23. DD

    Hi Saurabh,

    Lets say, A person is holding valid H1B stamped visa(Selected in 2015 H1B lottery) but due to some reason that person could not traveled and his/her visa got expired last year(Oct 2016). Now company again filled an amendment with extension (As earlier it was for another location) in PP (USCIS acknowledged the case on 29th march).

    Does this latest news about H1B is going to affect those candidates as well?

  24. H1B Aspirant 2018

    I pray that the H4 EAD rule to go off as already thousands of talented professionals are waiting for their first opportunity. This is the only reason I like Trump and the administration! I don’t know why they want to wait for 6 more months….

    1. H4EAD

      Well, your premise is incorrect on several levels. H4-EADs are not not talented. I have 12+ years of experience and switched to H4-EAD.

      1. anonymus

        I support H-4 EADs but I hate the fact that they are faking their experience and knowledge. A person who has just graduated is able to compete with people like you who are having 12 years of experience by changing some terms on their resume.

    2. xXiXx

      H1b is a very specific job requirement, and on the other hand H4 EAD can pick up any job, right from school teacher to Walmart clerk to starting their own company. If you are H1B Aspirant then there is no impact on that.

    3. H4 Supporter

      I pray that you never get H1B. Only the talented people should get it which includes H4 people who have valid skill set and good experience.

    4. Immigrant

      If you think an H4 EAD holder (a person who might have had a break for couple of years) can cause you your job , then you don’t belong to the ‘highly skilled’ criteria to apply for H1. And also what if they decide to apply for H1? Dosent it mean more number of people and lottery and you loose a chance . I hope that you will still ‘like’ Trump administration when they bring in H1 B reforms .

      1. Sf

        Some ignorant comments by ignorant trump supporters here…obsessed with ‘liking’ him and dismissing the truth as ‘fake news’. I hope he does something in your favor but so far he’s made it very clear- reduce or cut H1s and limit legal immigration.

    5. Aswini

      H1-B Aspirants wants H4 EAD to go off and few Americans want H1-B to go off, we all need less competition, ain’t it?

      Compared to other visas, the H1-B visas and student visas are a lot abused. Instead banning the EAD, the DHS should streamline the work visas so that it cannot be abused. They should also consider abolishing dependent visas for anyone above 21 or so and live in US should be free to work – it is known to be a free country after all.

      Freedom to work is a basic human right and it shouldn’t be snatched.

      To the abusers, and fake resume – remember what goes around comes around – have some integrity for self and the country.

    6. Ane

      @H1BAspirant2018.. dont worry you will be the first pray of Trump administration when new H1B rule comes out. I like trump administration too.. Lol

    7. SupportH4EAD

      You people really think H4 EADs work in Walmart. Just got wifes H4 EAD approved last week. She has double masters degree and is currently CEO and Founder of a company funded by American investors. Already have two Americans employed and creating more jobs in USA with three other positions currently open.

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