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Mar 2, 2018

The H-4 EAD Stays – For Now

Joshua H. Rolf

The Department of Homeland Security (“DHS”) has confirmed that it will refrain from issuing draft regulations that would revoke work authorization – or, Employment Authorization Documents (“EADs”) – for certain nonimmigrant spouses until at least June 2018. This news comes one week after DHS had indicated to the U.S. Court of Appeals for the District of Columbia that it planned to issue regulations by the end February to terminate the program. Now, DHS’ revocation of H-4 EADs – which have granted nearly 105,000 work permits to spouses of H-1B nonimmigrants since being rolled out almost three years ago – will not come for another three months while it performs additional economic analyses that will inform its drafting of the new policy. We accordingly would not expect H-4 EADs to be revoked until 2019 or later, given the need for notice and comment on any proposed rulemaking.

To review, H-4 EADs first became available to the spouses of certain H-1B nonimmigrants as of May 26, 2015. Amongst others, the new rule makes EADs available to H-4 holders if their H-1B spouse has an approved I-140 Petition but is not eligible to apply for a green card due to visa backlogs. H-4 EADs are also available to H-4 spouses if the H-1B holder has received H-1B status under Sections 106(a) and (b) of AC21. While waiting for the H-1B holder’s I-140 Priority Date to become current – which, based on the March 2018 Visa Bulletin may take many years for Indian Natives with approved EB-2 or EB-3 Petitions – the H-4 EAD makes it easier for married couples to support themselves through two incomes. Otherwise, married couples would otherwise support themselves (as well as dependent children) on a single income while they wait up to ten years to file for a green card.

In the meantime, USCIS will continue to accept and process EAD Applications for eligible H-4 spouses. Likewise, the above-mentioned litigation in the U.S. Court of Appeals for the District of Columbia challenging the legality of the H-4 EAD – Save Jobs USA v. U.S. Department of Homeland Security – remains in abeyance while DHS drafts its proposed rules. We will continue to keep you abreast of all updates on the H-4 EAD program as it works through the courts and rulemaking process.

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