Update on H-4 EAD Federal Litigation Case and Current Status on Proposed H-4 EAD Rescission Rule

On November 8, 2019, the federal appeals court reversed the lower district court’s 2016 grant of summary judgment in favor of DHS in the federal litigation case, Save Jobs USA v. DHS. The appeals court concluded that Save Jobs USA had demonstrated standing and therefore can pursue its legal challenge on the basis that the DHS’s H-4 EAD rule would subject its members to an actual or imminent increase in competition for U.S. jobs. The case has been remanded to the district court to decide whether the DHS had the statutory authority to grant work authorization to certain spouses of H-1B nonimmigrant workers.

There is no new update on the DHS’ proposed rule to rescind the H-4 EAD program. The DHS has yet to publish its proposed rule, which has been pending regulatory review by the Office of Management and Budget (OMB) since February 20, 2019. Per our previous alert, the DHS stated in a court filing with the federal appeals court that it is unlikely that the proposed H-4 EAD rescission rule will be published before Spring 2020.