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.
- 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.
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. We have to wait and see until January 2, 2018 to see what comes out.
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 ?