End to the H-4 EAD?
- Rebecca Carcagno Rodriguez, Esq.
- Nov 23, 2017
- 2 min read
It has been reported that the Trump Administration is planning to eliminate H-4 dependent spouse eligibility for employment authorization (i.e., the EAD) where the principal H-1B holder has an approved I-140 or where the principal's H-1B visa status has been extended beyond the 6 year H-1B visa status limit based on the pending PERM/I-140; this H-4 EAD eligibility originally became effective on May 26, 2015 and is codified in 8 CFR 214.2(h)(9)(iv), 8 CFR 274a.12(c)(26), and 8 CFR 274a.13. Before this rule, the H-4 visa category was not eligible for employment authorization.
Such a change is expected to affect thousands of people's eligibility for employment authorization since for the 2016 fiscal year, 41,526 H-4 dependent spouses were granted the EAD under this rule.
Save Jobs USA is currently challenging the legality of this rule granting H-4 dependent spouses eligibility for employment authorization in court by arguing that such a grant of eligibility for employment authorization should be accomplished through an Act of Congress rather than through the rule making process.
It has been reported to the San Francisco Chronicle that the Trump Administration is working on a new regulation that would effectively rescind the rule rather than focusing on challenging the rule in court. Updates regarding the lawsuit would be expected by January 2, 2018 as this is the next court deadline.
Currently, eligible H-4 dependent spouses are still able to apply for the EAD under this rule. The Trump Administration should not be able to effectively rescind the rule instantaneously as a lengthy notice and comment period would be needed to truly rescind the rule; in the worst case scenario where H-4 dependent spouses are no longer eligible to apply for employment authorization and they do prefer to work in the U.S., hopefully, the rule making process would permit them enough time to successfully find alternative means of employment authorization for working in the U.S. (e.g., O-1 visa status, H-1B visa status).
If you are worried about finding yourself in this situation where you may lose your H-4 EAD eligibility/H-4 EAD, you may prefer to contact an immigration attorney at your earliest convenience to assist you in finding an alternative means for employment authorization in the U.S.
***Please keep in mind that this blog posting is for educational purposes only (i.e., to give you general information and a general understanding of this immigration related matter); this blog posting does not provide specific legal advice and does not form an attorney-client relationship.***
Sources:
(1) http://www.sfchronicle.com/business/article/Trump-administration-has-plans-to-wipe-out-work-12366124.php?utm_source=AILA+Mailing&utm_campaign=b4701c88da-AILA8_11_20_17&utm_medium=email&utm_term=0_3c0e619096-b4701c88da-291319233
(2)https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/BAHA/eads-by-basis-for-eligibility.pdf
(3) https://www.uscis.gov/working-united-states/temporary-workers/employment-authorization-certain-h-4-dependent-spouses
(4) https://www.uscis.gov/working-united-states/temporary-workers/faqs-employment-authorization-certain-h-4-dependent-spouses
(5) https://www.federalregister.gov/documents/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov
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