Update: Publication of Proposed H-4 EAD Rescission Rule Possible in Spring 2020
The Department of Homeland Security (“DHS”) recently stated in a filing with the D.C. Circuit Court of Appeals that it believes the earliest possible publication date for the proposed H-4 EAD rescission rule would be in Spring 2020, although the agency noted that this timeframe is “aspirational." The DHS filing in Court relates to the ongoing 2015 federal lawsuit, SAVE Jobs USA vs. DHS, wherein a group of former IT employees, who claim they were replaced by H-4 workers, are challenging the DHS’ authority to grant EADs to dependent spouses of H-1B workers. The lawsuit further claims that the H-4 EAD regulation adversely affects U.S. workers due to the increase in the labor pool and job competition. The proposed H-4 EAD rescission rule, entitled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization, was submitted by the DHS to the Office of Management and Budget (OMB) for regulatory review on February 20, 2019. The regulatory review process is technically limited to 90 days; however, the review period may be extended indefinitely by the rulemaking agency pursuant to Executive Order 12866. Should the DHS publish the proposed H-4 EAD rescission rule by Spring 2020, it will have been pending review for over one year. It is speculated that the delay in the review process is based on concerns of the economic impact of the proposed rule. What this Update Means for H-4 EAD Recipients At this time, the H-4 EAD program remains in effect. USCIS is accepting I-765 applications and all eligible dependent spouses of H-1B workers should continue to pursue the EAD. If the proposed H-4 EAD rescission rule is published, it may take several months before it takes effect. The published proposed rule will need to undergo the public comment period for 30 to 60 days, after which DHS will review the comments before submitting final rule to the OMB for publication. We will provide an update as soon as the proposed rule is published in the Federal Register, or additional information becomes available.