The Department of Homeland Security (DHS) is expected to take steps toward proposing a regulation to rescind the Obama-era regulation that allows H-4 spouses of certain H-1B employees to apply for employment authorization documents (EADs) no later than March 18. Based upon ongoing litigation challenging the H-4 EAD rule, the court took the case out of abeyance and set a new briefing schedule requiring DHS to inform the court on their progress/plan for addressing the rule.

Key points:

  • The H-4 EAD rule remains in place until the agency promulgates a regulation rescinding it by first issuing a proposed rule and opening a public comment period, then issuing a final rule.
  • The rulemaking process will take several months, so a regulation could be finalized in mid to late 2019.
  • Although the agency has repeatedly indicated its intention to repeal the H-4 EAD rule, it has not indicated whether it will provide a transition period during which current H-4 EAD holders may continue to work or renew their EADs.

Background: The Obama-era H-4 EAD regulation currently allows spouses of certain H-1B employees to apply for employment authorization and has benefited more than 800,000 spouses. The Trump administration has repeatedly stated its intention to repeal the regulation, but its timeline for doing so has only been indicated through court filings in the ongoing case, Save Jobs USA v. Department of Homeland Security.

The lawsuit, filed by a group of American tech workers, challenges the current H-4 EAD rule as unlawful. DHS has kept the case on hold for several months by successfully arguing to the court that it is in the process of repealing the rule, making the case moot. After repeatedly holding the case in abeyance, the U.S. Court of Appeals for the D.C. Circuit removed the abeyance on Dec. 17, 2018 and ordered a trial briefing schedule. On Jan. 23, the court updated the schedule which requires DHS to submit its brief by March 18.

BAL Analysis: Normally, DHS would want to show progress on rulemaking before submitting its brief. At this time, DHS has not yet submitted its notice of proposed rulemaking to the White House Office of Information and Regulatory Affairs, the first step in the rulemaking process. BAL anticipates that DHS will at least initiate the rulemaking process by March 18 and the regulation would thereafter take several months to finalize. Employers are reminded that the current H-4 EAD rule remains in place at this time.

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

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