H-4 EAD Update: Draft Program Rescission to be Announced in June 2018

February 2018 was a month which was highly anticipated by all following the H-4 EAD litigation which sought to challenge the H-4 EAD rule and, specifically, the anticipated introduction by USCIS of the proposed H-4 EAD rescission regulations.     USCIS has filed an update to the court in the Save Jobs USA litigation where they essentially ask the court to hold the litigation until at least June 2018 when USCIS anticipates to be able to introduce a proposed H-4 EAD rescission rule.    Essentially, the release of the H-4 EAD rescission rule is delayed until at least June 2018.

Earlier, USCIS had published a notice dated December 14, 2017, which stated that it is reviewing the 2015 H-4 EAD rule in light of President Trump’s Executive Order 13788, Buy American and Hire American:

DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

USCIS’s intent to rescind the H-4 EAD rule is confirmed in the court filing :

USCIS represents that it plans to issue a notice of proposed rulemaking in February 2018 to remove from its regulations certain H4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

As a result, and assuming no additional delays in the drafting process, it is anticipated that the proposed rule will be published by June 2018.

Timeline of Regulatory Process

It should be noted that these are just the initial steps of proposed rulemaking.   The current H-4 EAD rule remains valid and H-4 EADs continue to be available for application and approval by USCIS.     Our office continues to handle many H-4 EADs and we urge applicants who may be in the process of applying for H-4 EAD to consider doing so as soon as possible before the new possible rule goes through the rulemaking process.

In terms of timeline, a rulemaking process generally takes at least several months.    With the revised timeline for publication of a proposed H-4 revocation rule in mid-2018, we expect that a final rule will take many months to become effective.   Once a proposed rule is published, it is subject to a public comment period which is then followed by a period of review and possible revision.    Then, a final rule is published with certain effective date in the future.   At this time, the timeline for the enactment of this possible H-4 EAD revocation rule remains unclear but we expect that, barring unforeseen developments, the H-4 EAD program may be valid in its current state for a number of months.

Prompt H-4 First-Time Applications and Renewals Encouraged

One of the major questions we hear is, “If the H-4 EAD regulations are amended to take away the H-4 EAD, would current H-4 EADs remain valid for their remaining term or they will be invalidated automatically?”

At this time, based on what we have seen in the past with other similar rules, our expectation is that even if the H-4 EAD work permit is taken away, existing H-4 EAD will continue to be valid for their remaining validity term.      We will certainly provide updates through our website and newsletter if we hear otherwise; and based on this assumption,  we suggest H-4 spouses who consider getting an H-4 EAD work permit (initial, or extension) to do so as soon as possible and to seek the maximum available validity (which is based off on the H-1B spouse’s validity term).

Note that an H-4 EAD renewal application can be filed up to 180 days prior to the EAD validity expiration.    Similarly, an H-1B extension (together with H-4 and H-4 EAD) can be filed up to 180 days prior to the H-1B petition expiration.

H-4 EAD Alternatives

At the same time, we urge our H-4 EAD clients and readers (both employers and employees) to plan carefully and consider alternatives to the H-4 EAD work permit for themselves or for their employees.

Among the more common alternatives which may permit employment authorization are H-1B, F-1 OPT/CPT, TN, E or O visas.   Please see our article on H-1B cap alternatives – while it was authored in the context of alternatives to the H-1B cap lottery, it provides a useful overview of available H-4 EAD work authorization options as well.

Conclusion:  Monitor Future Developments and Plan Carefully

Our office has been handling many H-4 EAD cases and we have been monitoring H-4 EAD developments very closely over the last few months.  Even though we have seen steps in USCIS’s efforts to  reverse the H-4 EAD rule, we are still very early in the process.

Our office will continue to monitor developments relating to the H-4 EAD program.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any H-4 EAD or any of the alternative options, please feel free to contact us.