H-4 EAD in Jeopardy?


In February 2015, the Department of Homeland Security (“DHS”) issued a rule permitting certain persons maintaining H-4 nonimmigrant status to apply for and, if eligible, receive employment authorization from DHS. Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284-10,312 (hereinafter the “H-4 EAD Rule”). Eligible H-4 visa holders include those whose H-1B status spouse has an approved I-140 immigrant visa petition or a post-sixth year H-1B visa extension. Following publication of the H-4 EAD Rule, many H-4 visa holders applied for and received H-4 Employment Authorization Documents (“H-4 EADs”), permitting their employment with any U.S. employer.
        
H-4 EAD Lawsuit

In April 2015, Save Jobs USA, an organization comprised primarily of U.S. information technology workers who claim that they lost jobs to H-1B visa workers, filed a lawsuit challenging the H-4 EAD Rule. The lawsuit was dismissed by the U.S. District Court for the District of Columbia in 2016 and an appeal to the U.S. Court of Appeals for the District of Columbia Circuit followed. Over the course of 2017, the DHS has repeatedly requested that the appellate proceedings be stayed to permit it to assess whether it should issue a notice of proposed rulemaking relating to the H-4 EAD Rule. In particular, the DHS has requested time to analyze the impact of the Administration’s “Buy American and Hire American” Executive Order (82 Fed. Reg. 18837 (April 18, 2017)) on the H-4 EAD Rule, suggesting to many that the DHS considers the H-4 EAD Rule, which permits employment by foreign persons in H-4 status, to be inconsistent with the Executive Order, which encourages the hiring of American workers.
    
What’s Next?   

The DHS has indicated in its most recent court filing that it intends to announce its intentions with respect to the H-4 EAD Rule in the fall Unified Regulatory Agenda, which is expected to be published by the Office of Management and Budget (OMB) by December 31, 2017. We believe that it is likely that the DHS will announce an intent to rescind the H-4 EAD Rule at that time, although there is no way to know for sure until the rule is published. Until then, the H-4 EAD Rule remains in force and those who are eligible are encouraged to apply before any changes take place that will impact the availability of H-4 EADs.   

This blog was written by Ann Lamdin and Sufen Zhang at Miles & Stockbridge.

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