In response to President Trump’s Executive Memorandum detailing a “Buy American, Hire American” policy, the U.S. Department of Homeland Security (DHS) has scrutinized petitions and applications for immigrant benefits more heavily and has evaluated ways to eliminate various benefits programs that are not specifically required by the Immigration & Nationality Act (INA). This effort, which has been focused largely on lawful immigration to the U.S., has brought the relatively new H-4 EAD benefit under fire.
Since at least April 2017, there has been speculation that the Trump Administration would eliminate the issuance of H-4 EADs to the spouses of H-1B visa holders. Because H-4 EAD issuance is based on Federal regulation, regulatory action would be required to eliminate the program. Accordingly, in order to eliminate the H-4 EAD benefit, the Government would need to publish a notice in the Federal Register that the H-4 EAD regulation will be rescinded. To date, the Government has not published such notice in the Federal Register.
Who Qualifies for an H-4 EAD Right Now?
Since 2015, H-4 spouses of H-1B visa holders have been able to apply for employment authorization (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). Because of the limitations, relatively few foreign nationals qualify each year, and they are family members already in line for permanent residency based the H-1B worker’s existing employment-based permanent residency (“green card”) processes.
It is unclear when the Federal Government will publish a notice in the Federal Register that the H-4 EAD regulation will be rescinded. Once the 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 H-1B Petitioner
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 or any other work authorized visa 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.
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.