USCIS Edging Closer to the Elimination of H-4 EADs

Recent court filing indicates USCIS still moving forward with revising regulations

Update: Yesterdaywithin 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 Status Update Report filed with the court, DHS stated that “Final DHS clearance review of the proposed rule [to eliminate H-4 EADs] is ongoing, and senior levels of the Department’s leadership are actively considering the terms of the NPRM for approval.”

Proposing a rule and publishing the text for public review and comment would be the next step in this process. USCIS has not publically said when they expect to this next step to occur.

Background: In December 2017, the Trump Administration revealed its intent to eliminate H4 EADs. These proposals came to light through a review of the Administration’s semiannual regulatory agenda published by the Office of Information and Regulatory Affairs. The initially published proposals indicated that additional details would be provided sometime in February 2018, but that has not yet occurred. That originally anticipated timeline has since been revised and pushed out for several months.

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 the now revised timeline, 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 new 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 17 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.