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Update on Possible Elimination of H-4 Spouse EAD Program

16 Jan

As reported in a recent Foster Immigration Update©, the Trump Administration is considering elimination of the H-4 spouse EAD program that permits the H-4 spouses of certain H-1B visa holders to apply for Employment Authorization Document (EAD) cards.   The Trump Administration moved one step closer to implementing these plans on Friday, January 12th, when the Department of Homeland Security (DHS) published its semi-annual rulemaking agenda in the Federal Register.

Who Would Be Impacted by the Proposed Change?

Currently, H-4 spouses of H-1B visa holders may apply for an EAD card if their H-1B spouse has reached certain milestones in the permanent residency process.  The H-1B worker either must be the beneficiary of an approved I-140 Immigrant Visa Petition or must have already entered into additional extension(s) of his or her H-1B status pursuant to Section 106(c) of the American Competitiveness in the Twenty-first Century Act (AC-21).

Effective Date

It is unclear when the DHS will publish notice in the Federal Register that rescinds the H-4 EAD regulation.  Once such a notice is published, typically a comment period is required before the rescission can take effect.  Additionally, those individuals who already hold H-4 EAD cards generally should be able to continue working through the validity period of their existing cards, though it is unlikely their cards would be renewed.

Qualifying H-4 EAD Holders Should Seek Employer for H-1B Visa

H-4 nonimmigrants who currently hold EAD cards or would like to work in the United States should consider whether they and their occupations may qualify for H-1B status.  For qualifying employees in a specialty occupation – one that normally requires at least the equivalent of a bachelor’s degree or higher in a specific specialty – new H-1B petitions may be filed on April 1, 2018, with a requested H-1B start date of October 1, 2018.  Because of the annual quota on H-1B petitions, it is necessary to file new H-1B petitions within the first five business days of April in order to be entered into the annual “lottery” for H-1B visas.  Because April 1st is fast approaching and the filing window is very short, employers should move quickly to file petitions for eligible H-4 employees.

Current H-4 EAD holders should also consider renewing their cards immediately if their cards are within 180 days of expiration, the earliest time frame permitted for filing a renewal.  There is no guarantee that the CIS will issue EAD cards if the regulation has been rescinded before the application is adjudicated, but it may well be worth the application in case a renewal can be accomplished prior to any new regulation going into effect.  It is also possible that pending applications may be exempt from any regulation rescinding the H-4 EAD regulation so long as the application was pending before the regulation was published.  It is possible that such applications may be “grandfathered in” for adjudication and EAD issuance.

H-4 nonimmigrants who hold or would like to hold an EAD card should contact their Foster attorney for more information regarding next steps to take.