Biden Administration Withdraws Plan to Rescind H-4 EAD Rule But Challenges Remain

The Biden Administration has withdrawn Trump’s plan to rescind the H-4 EAD program. The proposed rule, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” which was under review by the Office of Management and Budget (OMB) and Office of Information and Regulatory Affairs (OIRA) has been withdrawn as of January 25, 2021.

Challenges for H-4 EAD Applicants Remain

While the Biden administration’s withdrawal of the H-4 EAD rescission rule is welcome news, there are many major challenges for H-4 EAD applicants.

Perhaps the biggest issue is the extremely long processing time for an H-4 EAD application — in many cases, more than one year, especially when an H-4 EAD application for renewal is filed concurrently with an H-4 status renewal application. The H-4 status application has a biometrics requirement and over the past 10 months biometrics processing has been extremely limited and slow (see our recent article on biometrics delays and backlogs).

Combined with the fact that H-4 EAD renewal does not permit continuing employment authorization past the underlying H-4 EAD term (like some other EAD renewals do), the major H-4 EAD processing delays have been causing major challenges to most H-4 EAD applicants.

Additionally, a lawsuit challenging the H-4 EAD program filed by Save Jobs USA remains pending. As a result of the withdrawal of the H-4 EAD rule rescission, a status update is due to the court by March 2021. We will provide notable updates on this litigation although at this time we do not expect major developments.

Conclusion

We are hopeful that USCIS will continue to clear the regulatory landscape and provide clarity to many applicants who have been living among uncertainty over the past few years. Also we hope that USCIS will be able to improve the biometrics intake and lower the H-4 EAD processing times.

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with related matters.    You can also submit a request for an H-4 EAD attorney filing fee quote. Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.