In a December 18, 2017, Federal Register posting, DHS announced that it is evaluating (likely translation: rescinding) the H-4 EAD regulation in light of 2017’s “Buy American, Hire American” Executive Order. The current H-4 EAD regulations provide employment authorization for certain H-4 dependent spouses of H-1B nonimmigrants who seek employment-based lawful permanent resident (LPR) status. DHS will now propose to remove this work authorization.
The notice is in keeping with the Administrative Procedures Act (APA), as regulations cannot simply be rescinded without a 60-day public comment period. The notice asserts that DHS anticipates rescission of the H-4 EAD rule would potentially impact the “cost-savings accruing to forgone future filings of H-4 spouses and the potential labor turnover costs that employers of H-4 workers would incur.”
Even if the H-4 EAD rule is rescinded, individuals who hold H-4 EADs or have applications for such EADs pending with USCIS are not likely to be immediately impacted. What has traditionally happened when DHS eliminates a benefit is that existing documents remain valid but cannot be extended or renewed, and a final acceptance date for renewal applications is set in the notice of rescission. DHS is unlikely to deviate from those past practices.
Individuals currently eligible for an H-4 EAD — or who hold an EAD expiring within 120 days — are advised to file applications now, as they may become ineligible if the regulation is revoked. Given past Trump administration rhetoric, we believe that H-4 EAD regulation will be rescinded despite general support from employers.
