H-4 EAD Update: Plans to Rescind H-4 EAD Remain, Timing Uncertain

What is the status of the H-4 EAD rescission rule?  This is a very common question we have been hearing over the past months and, unfortunately, while the government still appears intent on rescinding the H-4 EAD work permit, there is no specific timeline as to when and how.     In a court update dated August 20, 2018, the Department of Homeland Security (DHS) has expressed its continuing desire to rescind the H-4 EAD program although the timing remains uncertain.  Previously, DHS was expected to provide a draft proposed rule before June 2018 (see our March 1, 2018 update).

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 was confirmed in the February 2018 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.

And now, in the August 2018 update, USCIS appears to continue to intend to rescind the H-4 EAD rule:

Final DHS clearance review of the proposed rule is ongoing, and senior levels of the Department’s leadership are actively considering the terms of the NPRM for approval. As previously noted, after DHS clearance, Office of Management and Budget review will occur under Executive Order 12,866, Regulatory and Planning Review. As represented to the Court in prior status reports, DHS’s intention to proceed with publication of an NPRM concerning the H-4 visa rule at issue in this case remains unchanged.

What remains uncertain is the timing of when the proposed rule will be released and, once it is released, what its specific provisions would say and how the H-4 EAD rescission will be justified (this will affect if and how any legal challenges to this H-4 EAD rescission may proceed).

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.