US Immigration Update: H4 Spouses May Lose Employment Authorization

On February 25, 2015, under the Obama Administration, U.S. Department of Homeland Security (“DHS”) published a final rule extending employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who were seeking lawful permanent resident status based on their employment in the United States. Currently, it is estimated that approximately 91,000 foreign nationals are employed in the United States with H-4 Employment Authorization Documents (“EADs”). 

On February 20, 2019, DHS moved forward with its efforts to revoke employment authorization for such H-4 dependent spouses by sending a proposed rule to eliminate eligibility for H-4 dependent spouse employment to the Office of Management and Budget (“OMB”) for review. It should be noted that the details of the proposed rule have not yet been published so we do not yet know the specifics relating to several key provisions, including the effective date of the rule and whether there will be a grandfathering clause (that will prohibit first time H-4 EAD applications, but will continue to grant extensions of work authorization to H-4 spouses who already have EADs). 

OMB typically has ninety (90) days to review proposed regulations. The Trump Administration, however, is seeking expedited review as it claims the change to the policy is economically significant, which means that a final rule could be published anywhere from May 2019 to January 2020. Until the final rule is published, DHS will continue to accept and adjudicate H-4 EAD applications. 

As we are quickly approaching H-1B cap season for Fiscal Year 2020 (FY20), and given the uncertainty of the H-4 EAD program in the future, U.S. organizations should consider the following: 

1. Does your organization currently employ any H-4 EAD holders?

a. If yes, does H-4 EAD holder qualify for another employment-based nonimmigrant visa, such as an H-1B under this year’s cap (to be filed during the first week of April 2019), or O-1, E-1, E-2, E-3 or TN classification? If so, now would be the time to consider other visa options, keeping in mind that the earliest filing date for the FY20 H-1B cap is April 1, 2019.

b. If yes, when does the H-4 EAD expire? If the H-4 EAD expires within 180 days, it should be renewed as soon as possible. 

2. Does the organization employ any H-1B foreign nationals with an H-4 dependent spouse? If so, the H-1B principal should be brought up to speed on this development and consider filing an H-4 EAD application on behalf of her/his spouse as soon as possible if the H-4 spouse is eligible.

By Meyner & Landis LLP, US, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance regarding US immigration law please contact Anthony Silato or Scott R. Malyk at usimmigration@transatlanticlaw.com

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