H-4 EAD Rescission Proposal Still Alive

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As has been previously reported under the Buy American, Hire American policy, USCIS has proposed rescinding the Employment Authorization (EAD) for certain H-4 visa holders.

This proposal had been on hold until of late when Department of Homeland Security submitted on February 20, 2019, a proposed regulation, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” to the Office of Management and Budget (OMB) for review.

There is no information available yet regarding what is in the proposed regulation or how the government intends to handle existing H-4 EADs. However, OMB review typically can take about a month to be completed, but could be as quick as two weeks. From that point, the following steps will need to occur:

  • actual proposed regulation will be published in the Federal Register

  • there will be a comment period, anticipated to be 60 days, could be 30 days

  • DHS will review the public comments and develop a final regulation

  • final regulation will be submitted to the Office of Management and Budget again for review

  • final regulation will be published in the Federal Register with a specific effective start date – because it is economically significant, it can’t take effect earlier than 60 days from the time the final regulation is published

  • anticipate a lawsuit to be filed, however, as the government is following proper notice and comment required it will be difficult to challenge revocation of the H-4 rule.

While this process is underway, applicants can continue to file new H-4 EAD applications and renew existing H-4 EADs.  For those holding H-4 EADs, it would be wise to consider alternative work visa categories, e.g. asking your employer to file a cap H-1B petition for change of status, if possible, this year.

Iandoli Desai and Cronin, P.C. is monitoring this and will provide updates as they become available.