The Department of Homeland Security indicated in a court filing Monday that it is considering whether to revise the regulation allowing H-4 spouses to work in the U.S. through the notice-and-comment process.

The 2015 regulation permitting spouses of certain H-1B workers to apply for employment authorization has been subject to litigation, and the case is currently in the U.S. Court of Appeals for the District of Columbia Circuit. In February, DHS asked the court to put the case on hold for 60 days to allow “the incoming leadership personnel adequate time to consider the issues.”

On Monday, DHS filed a motion requesting that this date be pushed to Sept. 27 on the grounds that the agency “has concluded that it is appropriate to actively reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.” This additional six-month period, DHS asserts, will allow the agency “to reconsider the H-4 Rule and whether issuance of a notice for proposed rulemaking relating to it is appropriate.”

BAL Analysis: The court has not yet ruled on the motion. Employers should keep in mind that the regulation has not been modified or rescinded, and remains in effect at this time. Employment authorization documents issued under the regulation remain valid. BAL will continue to provide updates on developments in this case.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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