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.
- 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.
What Happens Now – Can H4 EAD be revoked by Trump Administration ? What’s the Impact ? Current Status ?
Fall 2017 Regulatory Agenda : As you can see latest update above, we have a new agenda item called “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” that it is part of the Fall 2017 Regulatory agenda. Keeping the H4 lawsuit aside, now it has moved to a stage where the published agenda item to remove the H4 EAD rule. DHS and USCIS are working on the draft rule to send to OMB for review. Their current forecasted timeline is for June 2018 for the rule to be sent 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.
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 Fall 2017 regulation ?