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THE H-4 EAD PROGRAM—WHAT’S NEXT?

March 7, 2018

On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B workers who are applying for employer-sponsored green cards. The H-4 EAD rule served to incentivize highly skilled workers and further their contributions to the US economy by reducing the burdens H-1B workers and their spouses face while waiting in line for their green card–a process that may take several years, depending on the individuals’ country of birth. The policy reflects the Obama administration’s initiative to encourage and retain highly skilled talent and remain competitive with respect to the global economy while providing mobility to spouses who otherwise would be restricted from working if they choose to join their spouses in the US.

The H-4 EAD rule has since been challenged in Federal court and is currently awaiting further adjudication. While the Trump administration has provided its updated timeline to publish the proposed rule in June 2018, we anticipate many of those affected by the program are anxious to understand how the proposed rule to repeal the program works and what the timeline may involve.

The Federal Rule-Making Process

Unlike the legal challenge in Federal court (which requires the court to decide whether DHS had the authority to create the rule in the first place), the process to repeal the H-4 EAD program is similar to how the rule was created. In seeking a repeal, DHS will be bound by the Administrative Procedure Act which requires the agency to publish the proposed rule in the Federal Register—effectively providing advance notice of at least 30 (and up to 60) days’ notice to the public before revocation. After a minimum of 30 days and a review of the comments, DHS can then implement the Final Rule with or without incorporating comments.

What does this mean?

Just because DHS publishes a rule that eliminates the H-4 EAD program does not mean that any or all current EADs will be invalidated. However, given how the Trump administration chose to wind down the DACA program, we can reasonably anticipate a gradual phasing out of the EAD rule over a period of time rather than an immediate revocation across all current and qualified applicants. At this time, however, any specifics regarding the processes DHS plans to use are purely speculative. EIG is closely monitoring this situation and will provide additional updates as soon as they become available.