By Victoria Morte, Immigration Attorney
The Department of Homeland Security (DHS) has submitted a proposed rule for review by the Office of Management and Budget (OMB) to rescind H-4 dependent spouses from eligibility for an Employment Authorization Document (EAD). The proposed regulation, entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” is based on DHS’ Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan. The removal of this benefit would substantially impact H-1B-H-4 couples and their families, and employers who now employ H-4 visa holders with valid EADs.
As of December 2017, USCIS had approved 90,946 initial applications for H-4 EADs for dependent spouses when the principle H-1B holder is the beneficiary of an approved Form I-140 Immigrant Petition for Alien Worker or of an approved extension of H-1B status beyond the sixth year based on a filed Form I-140 or Labor Certification (PERM). While the proposed rule is under review, there is no immediate impact to the H-4 EAD application process, and qualifying individuals remain eligible to apply for the benefit. Consequently, any qualifying dependent spouses should consider filing an application as soon as possible before the rule rescinding H-4 EADs is finalized and implemented. Given the timeline of OMB review and the required notice and comment period, the opportunity to apply for an H-4 EAD is likely to be lost in the coming months.
OMB is permitted up to 90 days to review the proposed rule, which DHS submitted on February 20th. Following OMB’s review of the proposed rule, a notice of proposed rule making will appear in the Federal Register and will be open for public notice and comment for a 30 to 60-day period. The proposed regulation will go into effect only after DHS finalizes the rule following the comment period. Unless DHS establishes good cause for faster implementation, the finalized rule must be published at least 30 days before it goes into effect.
Under current regulations, DHS maintains the authority to revoke employment authorization granted to H-4 dependent spouses prior to the expiration date on the EAD via written notice. DHS has not yet indicated if any transition period or final renewal opportunity will be offered to current H-4 EAD holders following publication of the final rule.
Further, DHS has not addressed its adjudicatory plan for H-4 EAD applications that remain pending when the final rule is published. However, according to USCIS’ current guidance, H-4 EAD validity begins on the date USCIS adjudicates a pending Form I-765 or on the date an applicant acquires qualifying H-4 status. H-4 EAD validity is not backdated to the time qualifying H-4 status is granted.
As we await publication of DHS’ proposed rule, current H-4 EAD holders and/ their employers should immediately explore with immigration counsel whether H-1B sponsorship is viable or if there are potential alternative options including other available nonimmigrant classifications and immigrant visa processes that might facilitate the continuity of employment.
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.