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H-4 EAD Rule Moving Forward, But Still in Early Stages

February 27, 2019

The Proposed Rule is With the White House OMB for Review

Update: On February 20, 2019, DHS submitted the H-4 EAD Rule removal to the White House Office of Management and Budget for review. In the Federal Rule Making Process this is an early step (see image below) which can take up to 90 days to complete. While there is a significant level of uncertainty about whether the rule will be fully implemented following court challenges, it is becoming increasingly likely that H-4 EAD’s will eventually be eliminated.

General FAQs
Will H-4 EAD’s definitely be eliminated? 
There is an increasing likelihood that this will happen, but nothing has been definitively determined; there are still multiple steps remaining in the Rule Making Process, as well as court challenges that must be resolved before a final outcome is determined.

If the Rule is implemented, when will it come into effect? Given the steps involved and the unpredictability of each step we do not have an estimated timeline at this point, but it is unlikely any rule will go into effect within the next 90 days.

FAQs for Individuals with H-4 EADs
I am eligible for an H-4 EAD under the current rules, can I still apply for an H-4 EAD? Yes, the current rules remain the same while the process plays out.

I have an H-4 EAD. How long will I be able to work if the Rule is implemented? That is yet to be determined. We expect USCIS to publish guidelines regarding the winding-down process when the final rule is published. In previous situations where EAD eligibility was modified, such as with DACA and other programs, DHS let the existing EAD’s remain valid until their expiration date. Although there are no guarantees, we would expect a similar rule here.

I have an H-4 EAD. Can I apply for an H-1B in my own right? Possibly. It depends on your employment and employer. H-1B eligibility is independent of H-4 EAD eligibility and requires a sponsoring employer, an eligible role that meets H-1B requirements, and other requirements.

EIG will continue monitoring events as they unfold.

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