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USCIS Is One Step Closer To Ending H-4 EAD Eligibility

26 Feb

U.S. Citizenship and Immigration Services (USCIS) has forwarded to the Office of Management and Budget (OMB) its draft of a proposed rule to end eligibility of H-4 spouses to apply for Employment Authorization Document (EAD) cards after their spouses have reached an advanced stage in the permanent residency process.

A new rule in 2015 first created eligibility for EAD cards for H-4 spouses of H-1B nonimmigrants:

Who are the beneficiary of an approved I-140 Immigrant Visa Petition, or
Who have already begun qualifying for additional extensions of H-1B status under Section 106 of the American Competitiveness in the Twenty-first Century Act (AC-21) based on having a PERM labor certification application or I-140 Immigrant Visa Petition filed more than one year prior and not being able to adjust status to U.S. lawful permanent resident due to per country limitations on immigrant visa availability.
Since 2017, the Trump Administration has signaled its disfavor for the regulation and in the fall of 2018 indicated its intent to propose a rule that would rescind the 2015 regulation and thereby end eligibility of H-4 spouses to apply for work authorization.

On February 20, 2019, the Office of Management and Budget received the proposed regulation. The regulatory review period is now under way. The next step is ordinarily publication of the proposed rule in the Federal Register, though it is possible the USCIS could decide to abandon the rulemaking effort. After publication in the Federal Register, the proposed rule may go into effect as a final rule only after the required period of notice and comment. The date of publication in the Federal Register, and therefore the final effective date of the regulation, are unknown at this stage. The process could take several months or even over a year.

It is unclear at this stage whether USCIS intends to revoke existing EAD cards that have already been issued or simply terminate eligibility for issuance of new/renewed EAD cards for H-4 spouses after the effective date of the regulation. While it would make more sense to simply terminate eligibility on a go-forward basis than to revoke benefits already granted, it is possible that the USCIS regulation may attempt to revoke previously-issued and valid EAD cards.

If the USCIS regulation attempts to revoke existing EAD cards, there would certainly be a legal challenge in federal court, and it is possible that the Government would be enjoined from revoking existing EAD cards. Accordingly, qualified H-4 spouses would be wise to continue to file Applications for Employment Authorization until such time as the benefit officially no longer exists.

For assistance in determining potential eligibility and to prepare and file an application for H-4 work authorization, contact your Foster attorney. Your Foster attorney will also be able to discuss other potential options such as an H-1B visa petition on behalf of qualified professionals employed in a specialty occupation. Because new H-1B petitions can only be filed in the first week of April, employers should contact their Foster attorney now for more information.

As always, Foster will continue to monitor potential and upcoming changes in USCIS regulations and will provide updates as appropriate via Foster Immigration Updates© and on the firm’s website at www.fosterglobal.com.