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Insights: How to Prepare for Rescission of H-4 Employment Program

The U.S. Court of Appeals for the D.C. Circuit, at the government’s request, has been holding a case on the viability of H-4 EADs in abeyance for about six months. The government said it planned to make significant revisions to its proposal to eliminate H-4 EADs. In its Spring 2018 Regulatory Agenda, DHS announced the expected date of publication for its proposal to rescind the ability of certain H-4 spouses to obtain EADs is June 2018 – less than one month away.

The government’s proposal for winding down the H-4 EAD program is expected to address the following questions:

  • Will those with H-4 EADs be allowed to continue to renew their work authorization or not?

  • Will initial applications and applications for renewal for H-4 EADs be accepted until a date certain?

  • Will there simply be a date when all H-4 EADs will no longer be valid?

There are approximately 100,000 spouses of H-1B workers employed on H-4 EADs. These spouses, mostly women, are often highly skilled workers who simply are unable to obtain one of the limited number of H-1B visas available annually. They are also entrepreneurs building businesses and creating jobs in the United States. Taking away their ability to work will affect not only their families’ finances, but also U.S. companies’ ability to compete for the “best and the brightest” internationally.

Given the uncertainty, eligible applicants should apply for and, if possible, renew H-4 EADs expeditiously.

Moreover, individuals with H-4 EADs should be exploring possible alternatives.

If the H-4 EAD holder has a sponsor company, consider the following:

  • Is an O Visa for individuals of extraordinary ability a possibility?

  • Is the individual from one of the countries with treaty-based work authorization similar to H-1Bs such as Canada, Mexico, Singapore, Chile, and Australia?

  • Is the individual employed by or could be employed by a college or university or other affiliated institution that is not subject to the H-1B cap or even employed concurrently by an exempt organization?

  • Could the individual be employed in L status by the parent, subsidiary, or affiliate of a company that he or she worked for within three years of coming to the U.S.?

If the H-4 EAD holder does not have a sponsor company, consider the following:

  • Could the individual apply for a self-sponsored Green Card such as an EB-1A (for individuals of extraordinary ability) or an EB-2 National Interest Waiver (for individuals with advanced degrees or exceptional ability working in a field that serves the national interest of the U.S.)?

  • Could the individual return to school in a program that would provide work authorization in the form of CPT or later OPT?

  • Could the individual apply for a Green Card under the EB-5 Immigrant Investor Program?

Determining whether it is feasible for an individual to obtain any one of the above statuses requires a fact-based legal assessment.

Jackson Lewis P.C. © 2019

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About this Author

Otieno B. Ombok, Jackson Lewis, I9 Compliance Lawyer, immigrant visa petitions Attorney
Principal

Otieno B. Ombok is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Mr. Ombok specializes in all aspects of employment-based non-immigration and immigrant visa petitions. He also advises on I-9 compliance issues as well as outbound immigration matters. He has a natural facility in addressing client issues such advises both U.S. and foreign employers with regard to immigration matters. He has a natural facility in addressing client issues pertaining to healthcare visas for medical professionals,...

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