DHS Submits Draft Rule for Rescission of H-4 EAD for Regulatory Review

On February 20, 2019, the Department of Homeland Security (DHS) submitted a draft rule to the Office of Management and Budget (OMB) to rescind the H-4 EAD (Employment Authorization Document) program. The content of the rule has not yet been published. Since 2017, the Trump Administration has signaled its intention to rescind this program, as part of its Buy American Hire American (“BAHA”) regulatory agenda. If the rule becomes final, it would impact the ability of certain spouses of H-1B workers who are in H-4 status to apply for work authorization. Under current regulations, certain H-4 spouses are eligible to apply for work authorization where the principal H-1B worker’s green card process is delayed due to processing or quota backlogs. Please note that the rescission of the H-4 EAD program will not take effect immediately. The draft rule is currently undergoing regulatory review by the OMB which can take up to 90 days. Once the draft rule is approved by the OMB, it will be published in the Federal Register for notice and public comment. After the comment period closes and the DHS has reviewed the comments, the final rule will be issued. This process can take up to several months depending on the speed of the OMB and the DHS in the rulemaking process. Although the text of the proposed rule has yet to be published, we believe that it is very unlikely that the rule will cut short H-4 EADs that are still valid at the time the rule becomes final. The rule will, however, likely prevent renewals of these EADs. With this in mind, we encourage H-4 spouses who are eligible to apply for the EAD, and those who are within the 180-day renewal period, to submit their EAD applications to USCIS as soon as possible. We will provide an update as soon as the proposed rule is published in the Federal Register, or additional information becomes available.

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