The DOJ and the DHS have made clear on numerous occasions that they intend to rescind employment authorization documents (EADs) for H-4 visa status holders and it appears that rescission may be just around the corner. Family members of an H-1B worker are admitted in the H-4 category.
According to DHS pleadings in the U.S. Court of Appeals for the D.C. Circuit, a Notice of Proposed Rulemaking (NPRM) will be issued by the end of February.
H-4 EADs have been the subject of litigation since the regulation creating them was issued in 2015 during the Obama Administration. Save Jobs USA, a group of high-tech workers, had filed suit in the federal district court in D.C., arguing that the DHS lacked the authority to issue the H-4 EAD regulation. Save Jobs USA lost in the district court, but it appealed to the federal appeals court just before President Donald Trump was inaugurated.
It then fell to the Trump DOJ to defend the regulation. Instead of mounting a defense, the DOJ asked for a 60-day pause in the proceedings to “allow incoming leadership personnel adequate time to consider the issues.” That pause was to conclude on April 3, 2017.
The DOJ asked for a second pause of 180 days “to permit the Department [of Justice] to re-consider the H-4 Rule and whether the issuance of a notice of proposed rulemaking relating to it [would be] appropriate.” The Court granted another pause until September 27, 2017.
On September 27, 2017, the DOJ requested yet another delay because the “DHS required additional time to assess the H-4 Rule in light of the Executive Order 13,788, Buy American and Hire American . . . .” That request was granted until January 2, 2018.
Now, more than a year after the appeal was filed, the DOJ has requested a fourth delay to give the DHS more time to begin the NPRM to rescind the rule. The DOJ argued that, because DHS “has announced its intention to propose rescission of the H-4 Rule in its current form and remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization,” the issues raised by the litigation will become moot. In a Per Curiam Order, the Court granted the request, stating that DHS “represents that it plans to issue a notice of proposed rulemaking in February 2018 . . ..”
While the Administration’s intention to eliminate at least some H-4 EADs seems clear, how it proposes to wind down the program is not. Employers should consider back-up plans for employees on H-4 EADs such as filing H-1B cap-subject petitions in appropriate situations.