On December 14, 2017, the Trump administration filed its intention to promulgate a proposed rule with the Office of Management and Budget (“OMB”) to eliminate the regulation that allows certain H-4 spouses of H-1B workers to apply for and receive employment authorization documents (“EADs”). At this time, no specific rule has been proposed, however, this is a strong indicator that one will be forthcoming and that H-4 EADs will eventually be taken away. The regulation that the Trump administration is proposing to eliminate was created by the Obama administration and finalized on February 25, 2015 and allows H-4 dependent spouses to apply for EADs when the principal H-1B worker either has obtained an approved Form I-140 Immigrant Petition or has been granted an extension of their H-1B status beyond their sixth year based on a filed Form I-140 Immigrant Petition or Application for Labor Certification (“PERM”).
Background About the H-4 EAD Rule and Ongoing Litigation
The rationale for allowing H-4 spouses to receive EADs is that it allows U.S. businesses to better attract and retain highly skilled foreign workers by encouraging workers who hold H-1B status to seek to permanently remain in the United States and continue to contribute to the U.S. economy as lawful permanent residents (“LPRs”). The Obama administration took the position that these highly skilled workers make significant contributions to entrepreneurship and research and development, which in turn drives overall economic growth and job creation. The H-4 EAD rule acknowledges that foreign nationals who were born in certain countries (mainland China and India, among several others) are subject to wait times to become LPRs that can last a decade or longer. By allowing the spouses of those H-1B workers who had been sponsored for LPR status to obtain work authorization during this long wait period, those H-1B workers would be incentivized to pursue permanent residence. Additionally, many spouses of H-1B workers have their own university degrees, as well as relevant work experience, which would be of use to the U.S. economy.
On April 23, 2015, a group of technology workers who had been replaced by H-1B workers filed a lawsuit styled Save Jobs USA v. U.S. Dep’t of Homeland Security seeking an injunction to block the regulation from taking effect. The judge denied a motion for preliminary injunction, then in September 2016 dismissed the case stating that Save Jobs USA lacked standing to challenge the rule. Save Jobs USA appealed the decision, and then in February 2017 the newly instated Trump administration intervened and was granted a motion to place a hold on the appeal while the government considers its options relative to the H-4 EAD rule. The Trump administration’s justification for doing so is that it does not make sense for the court to issue an opinion related to a rule that is likely to be changed.
On April 18, 2017, President Trump issued his “Buy American and Hire American” Executive Order which directed the Department of Homeland Security to evaluate the existing immigration system and propose new rules and issue new guidance to superseded or revise previous rules and guidance, if appropriate, to protect the interests of United States workers. Since then, the Trump administration has filed several requests to continue to hold the Save Jobs USA case, which the court has granted.
The Rulemaking Process
As previously stated, on December 14, 2017, the Trump administration formally filed a notice with the Office of Management and Budget, indicating that proposed rulemaking will be forthcoming. Once the proposed rule is published, the public will have an opportunity to provide comments, which is typically a 60-day period (though it can be longer or shorter). The government agency must then analyze the comments and draft a final rule, in which they must address the comments and explain why they acted on some comments and not others. The government agency then issues a final rule, which typically only becomes effective at least 30 days or more after publication. As a result, those who have spousal H-4 EADs will have advanced warning that their employment authorization could be revoked.
While no rule has yet been proposed, we expect that one will be in the coming days, weeks, or months. The public in general will then be able to issue its comments, and those who may be affected, and their employers, will have the opportunity to make their opinions on the rule known.
What’s Next for Those with Spousal H-4 EADs
Unfortunately, it appears that the writing is on the wall, and that at some point in the future H-4 EADs will no longer be available. When and how it will occur is still unknown. In the meantime, those who are utilizing Spousal H-4 EADs, or their employers, should immediately speak to immigration counsel to determine whether alternative options are available, such as changing into another working visa status, or beginning the process for obtaining LPR status on behalf of the H-4 spouse.
For more information about the proposed elimination of H-4 EADs, or to ask a specific question, please contact any of the immigration attorneys at Parker Gallini.