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USCIS Continues to Discuss Elimination of H-4 EADs Internally

September 21, 2018

Court filing today indicates USCIS expects to propose a rule within 3 months. 

Update: Todaywithin the context of ongoing litigation over H-4 EADs in the U.S. Court of Appeals for the District of Columbia Circuit, DHS reiterated its intention to proceed with publication of a Notice of Proposed Rulemaking (NPRM) concerning H-4 EADs. In a motion filed with the court, DHS announced that in the month since the last update in August, “DHS’s senior leadership [has] reviewed the [draft] proposed rule and returned it to USCIS this month for revisions.” The motion went on: “DHS is making solid and swift progress in proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.” Per DHS, they now expect the next step of proposing a rule and publishing the text for public review and comment to occur “within three months.”

Background: As reported previously by EIG in March and August, last December the Trump Administration revealed its intent to eliminate H4 EADs. Since then, we have repeatedly seen DHS extend the expected timeline. Given the proposed rule is now expected “within three months,” the final rule is not expected to take effect until sometime next spring (although this may be pushed further into the future).

Save Jobs USA v. DHS Prior to the Administration’s actions last December, the H4 EAD rule was already an issue in an ongoing federal lawsuit in which the Department of Homeland Security is a defendant. In an Order dated February 21, 2018, the Court, in this case, held the proceedings in abeyance, temporarily suspending the proceedings based on DHS’ representation that it was planning on issuing a notice to remove H4 EADs in February 2018.  Given today’s filing, we expect the Court to continue to keep the case on hold to provide the administration additional time to evaluate policy options.

Analysis: Once the proposed rule is eventually published, the public will have time to review the proposal and provide feedback to the government. For more insights, listen to the June 17th episode of EIG’s “Immigration Nerds” podcast, in which EIG attorneys Andy Finkle and Jeffrey Quilhot discuss the possible elimination of the H4 EAD program and what course of action could be taken.