What to Consider as DHS Moves to Rescind H-4 Employment Authorization Document Rule

Ulmer & Berne LLP

The Department of Homeland Security (DHS) has formally moved to rescind the H-4 Employment Authorization Document (EAD) Rule, which permits the spouses of certain H-1B professionals to apply for work authorization if their H-1B spouse is in the green card process but is ineligible to apply for adjustment of status due to the immigrant visa backlog. The H-4 EAD rule particularly impacts natives of India and China.

DHS has sent the rule to the Office of Management and Budget (OMB), which under the rules must review the proposed regulation within 90 days. However, OMB is likely to act sooner since the Trump administration has sought expedited review, claiming the change is “economically significant.”

OMB review will be followed by a 30 to 60 day public notice and comment period after which DHS must review and respond to the comments and publish the final rule. It is expected that the final rule rescinding H-4 employment authorization may go into effect sometime between May 2019 and January 2020.

The details of the proposed rule are not yet known, but DHS is expected to continue to accept and adjudicate H-4 EAD applications until the final rule goes into effect. In the meantime, spouses of H-1B visa holders should consider whether:

  • They currently qualify for H-4 employment authorization;
  • They should apply for renewal of their H-4 employment authorization before the final rule goes into effect; and/or
  • They independently qualify for an independent employment-based visa.

Ulmer’s immigration team is monitoring these developments closely and will update this alert as matters progress.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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