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 Saurabh2227 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 ( 2,227 )

  1. Desparate Desi

    It appears like the policy to deny 485 to GC change of status can be difficult to contest. Hoping that the applicant would not go out of status , as long as their H1 is active . Anyhow what ever anyone says , I will do anything to stay in US. India is becoming unbearable, I was there this summer in India , summers are getting unbearably hot and humid. If visiting India can be so unbearable , living there I think would pathetic . Probably facing racism and discrimination or unbearable pollution and unlivable conditions , which is our choice. No wonder we are struggling to stay back in US under any circumstances, at least I am going to be here what ever it may be , even move to Canada, but not to India.

    1. Nandini

      One of my colleage who works with me has done some nursing or dental course in India. She never worked in IT. After H4 EAD rule now she is Software Engineer. What a magic!!!! Taht’s the power of H4 EAD. the greatest loop hole in US to do tricks.

  2. Desi_Bul

    what a turn of events , USCIS and DHS is after every one except H4 EADs , this is totally unexpected. The new rule that if any H1B applicant used any of the public benefits like child health insurance subsidies will have tough time to get Green card. Good Luck every one !!!!!!!!!

    It appears now that lot of employers are not even considering H4 EADs and OPTs. Is that true ?

    1. Videsi dude

      You are not going to get a Green card in your life anyway, not with the current wait times so that conversation is useless.

      Employers do NOT want to hire anyone on a visa- H1b/H4/F1 whatever, that is true. (Unless desi consultancy)

    2. Debbie

      You r right—This was the plan of Trump Adviser -Stephen Miller.He is a 32 year old guy with a brain of mad dog and the RFE policy that will come into affect was also his policy.Most of the denials on H1B will be seen from 11th Sept onwards.As per survey,As many as 60% will be denied and mostly can be indian h1b’s….and will be quota cases,transfers and extensions….
      So after all—Those who use Obama care or children health insurance will not be granted with GC. That means –Most H1B holders with I-140 have families and with children and if they have used children health insurance or even Obama care for themselves will face difficulty in getting GC. But as per lawyer association this will be fought in the court of law ….let us wait and see what happens….
      More what policies are there in the mad dog brain of Miller we never know but we should be always prepared for every policy that comes into affect during this current administration.
      Trump and his mad team wants to limit legal immigrants….that’s what I heard from several key lawyers and insider team of democrats….

      1. Manasa

        Sounds like Trump Adviser Stephen Miller was affected by Zika Virus as this virus affects the brain of a new born child with abnormal shapes …so this Miller was also affected by this virus during birth I guess…that’s the reason he is implementing all policies that will hurt mostly Indians.
        The non RFE policy and banning GC and Citizenship for those using of government policies like obama care and such were all his policies…

    3. Pardesi Dude

      Mainly –H4EAD’s if they have good experience and qualify in interviews all employers will consider them but in case of OPT’s-they have really hard time since they are banned from working for 3rd party client locations and even if these OPT’s work as if they hold H1b these will also be easily known during background checks.Now a days many recruiters are requesting for Id’s,passport/visa information and h1b copies and such so OPT’s are having tough time but H4EAD’s not…..

      1. Another_desperate_bull

        It appears like the policy to deny 485 to GC change of status can be difficult to contest. Hoping that the applicant would not go out of status , as long as their H1 is active . Anyhow what ever anyone says , I will do anything to stay in US. India is becoming unbearable, I was there this summer in India , summers are getting unbearably hot and humid. If visiting India can be so unbearable , living there I think would pathetic . Probably facing racism and discrimination or unbearable pollution and unlivable conditions , which is our choice. No wonder we are struggling to stay back in US under any circumstances, at least I am going to be here what ever it may be , even move to Canada, but not to India.

      2. Tresa

        Don’t make these kind of funny statements -” H4 EAD’s have good experience”. If you see those people 8 out of 10 have fake experience and they act like they are supoer skilled. I am seeing H4 EAD people in my company whom I personally know many of them never worked in IT. Have done several other courses too.

        If DHS come up with some scrutiny or paperwork needed to prove H4 EAD’s qualified for IT jobs like H1b 80% of them will be rejected. Again there are genuine. But fakes are more than genuine with H4 EAD.

    4. Pallavi

      Very true. H4 EAD’s with fake experience and the experience accumulated after the H4 ead rule came in to effect are enjoying like anything in IT world. Many of them have done dental degrees, teaching degrees, commerce degree and now they are professional IT engineers. This happens only in this country, not anywher,e else. NOw all the happenings are in twitter. Why don’t you post in twitter #DHS asking for H4 EAD updates and show them how much they damaged IT industry with H4 ead rule. Agreed elligible people should get job./ But now the case is if you have H4 EAD do some online training for 3 or 4 months and land in IT job. This is H4 EAD. Are DHS not aware the count of H4 EAD holders working like H1b holders. Why no checks for them?

      1. Suresh

        No, I am on H4EAD, so far we are survived. I am afraid that they won’t just leave us alone like that. My dream is that even if they revoke EAD, but they could offer us to swap EAD card to GC without gap, or something like that.

      2. Desi Dude Dad-DDD

        Remember that h4ead’s are slaves of h1b holders with I-140 approved.If no h1b then h4ead is lost automatically.

    1. Nandini

      One of my colleage who works with me has done some nursing or dental course in India. She never worked in IT. After H4 EAD rule now she is Software Engineer. What a magic!!!! Taht’s the power of H4 EAD. the greatest loop hole in US to do tricks.

  3. XOXO

    Suit against new limits on STEM students in US

    Read more at:
    http://timesofindia.indiatimes.com/articleshow/65031805.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

  4. Neha

    All of these new rules from DHS are meant to clear GC backlog which is a good thing for most of H1b. If we want to clear this backlog faster, we should start writing emails about the wrong doings of your co-workers to
    [email protected]

    1. Praveena

      H4 EAD should be the one which go away first. If you dig past, H4 EAD caused all these issues. With all the house wifes sitting at home started working on H4 EAD with fake experience, many lost their job. They should have imposed strict restrictions while giving h4 EAD holders working in IT or relevant field. Seriously telling, how many h4 EAD holders misused IT jobs by doing some basic training and got hired. That was the start of all the troubles. Because of them all got in to trouble.

      1. Mekha

        Very true. Most of H1b people have atleast engineering degree in some fields and prior experience. If you look at h4 EAD ladies, 9 out of 10 are not genuine, They just got in IT jobs with fake experience, And now all the scrutiny on H1. There are many beauticians, teachers, stylists, plus 2 holders, nurses, or not even employed anywhere before now working in IT jobs with H4 EAD.

        1. Mohit

          Well I agree that most of H4 EAD workers are not genuine but what about those who are genuine? Same is the case with H1B visa holders. Let’s face the fact that people have abused the liberty to work but aim should be to filter out good candidates. If a candidate has studies here or done some kind of academics the those should be preferred.
          Eliminating H4 EAD or H1B completely is not a solution.

        2. Seema

          Oh please. It’s not true at all. There are Fake people on OPT’s, H1’s, L1’s, L2’S and H4’s. Don’t blame just the h4.

          Glad you spoke about some engineering degree, but I have Master’s from a reputed School and I am on h4 EAD.

          I paid more than what you have paid for your employer or whatsoever for your H1. I have studied here, did my thesis here and I have genuine work experience.

          How in the world you talk about revoking h4 ead. All my friends here have Master’s from reputed schools and they are on h4 ead’s. There are lot of genuine people too.

          Fake people are everywhere. The organizations have to scrutinize and hire the best. That’s the solution. Show some respect to us. By the way, we are more deserved than you.!!

  5. lawyer

    More notes from Policy Memorandum -USCIS-13th July 2018 on RFE and Notice of intend to deny(NOID)
    All:
    The purpose of the policy memorandum was:
    This Policy Memorandum (PM) provides guidance to U.S. Citizenship and Immigration Services (USCIS) adjudicators regarding the discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not
    submitted or if the evidence in the record does not establish eligibility.

    More from the policy: The current Policy memorandum over rides the year 2013 Policy on RFE’s. Go through the background on page 2 of 8 and you will be coming across below content…

    The policy implemented in this PM rescinds the 2013 PM’s “no possibility” policy and restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID,
    when appropriate. This policy is intended to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes
    or misunderstandings of evidentiary requirements.

    My suggestion to all H1’s:

    The H1 beneficiary whoever H1 petition is in process by the service centers under normal processing and if you think that it can take longer then 11th Sept 2018 then I advice the beneficiary to convert the normal process to premium process and get back the H1 before 11th Sept 2018 since the RFE Policy will be in affect from 11th Sept 2018 where there will be only denials but no more RFE’s will be sent by USCIS to the petitioner….

    You can download the Policy memorandum at below link:

    https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf

    All—Kindly have a close look at any future policies that are related to your visa and be alert always as current immigration policies will only hurt the immigrants/non-immigrants community including economy –why I am saying economy is due to this policy –almost 75% of H1’s will be gone since they were more then 75% were issued RFE and if no RFE policy then direct denial notice will be sent and it also mentions to leave the country immediately and much more…….As per current year the 78% was issued RFE on H1 Cases and this information is based on USCIS meetings with the immigration law community…

    Hope above info helps H1 community of Indians/Asians…

      1. lawyer

        No RFE Policy applies for all visa categories except DACA recipients due to federal court order.Fyi-this policy will be in affect from 11th Sept 2018 onwards.Go through the policy memorandum dated 13th july on rfe and noid.,if you still have doubts contact any immigration lawyer.

  6. SaveH1B

    Guys Try to save H1b first, instead of running after H4 EAD.
    We need to focus on SaveH1B, not save H4EAD. If H1b is gone there is no H4.
    Guys Wake UP!!

    1. Clear GC Backlog

      What all issues to focus on !! They are so many related to one another .All will be cleared if the GC moves and completed its cycle in a respectable time……..It would help people who have been for 2-3 years to more than 10 years .Would help the spouses/families/ and the aging out Kids!!

  7. lawyer

    All,
    the policy memorandum having subject – issuance of certain rfe and noid is released on 13th july and is of 8 pages.all h1b and other non immigrant and immigrant visa holders need to check out,as this is much more severe policy then notice to appear as this eliminates people who want to settle down in usa after spending lakhs of rupees on academics. also this is too risky for people who own a house as it cannot be sold in one day.,since denial notice will mention to leave the country immediately .my best advice is- apply for h1 ext or transfers well in advance atleast 6 months before your h1 expires and apply via premium since normal processing takes more then 8 months in few cases to get the outcome of the h1 petition. hope above info helps h1b holders,

  8. lawyer

    All,
    No more RFE policy just denials as per new policy that cameup today from USCIS and this is going to be effective from 11th Sept 2018.That means as per uscis,there was 78% rfe on quota cases and that all will get denied under new policy.
    check uscis policy -new policy on rfe on Google. there is full lengthy policy of multiple pages….read and i guess this will impact 60% of indians as well as economy.

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