A proposed regulation that would rescind the “H-4 EAD rule” that allows certain H-4 visa holders to apply for employment authorization documents remains pending at the Office of Management and Budget’s Office of Information and Regulatory Affairs. After OMB clears the proposed rule, the Department of Homeland Security will publish it in the Federal Register. DHS indicated in a court filing Monday that the rule “is expected to shortly be issued.”

Key points:

  • It remains unclear when DHS will publish a proposed H-4 EAD rescission rule, but it is likely to take at least several weeks to clear the OMB. DHS sent the proposed regulation to OMB for review on Feb. 20.
  • The H-4 EAD rule remains in place today and will continue to be in effect until a final rescission regulation is published. It generally takes a minimum of three months for a proposed rule to become a final rule.
  • In an ongoing lawsuit that challenges the current H-4 EAD rule, DHS submitted a brief on Monday that reiterated that a rescission rule that would remove H-4 spouses from work-authorization eligibility “is expected to shortly be issued.”

Background: Issued in 2015 during the Obama administration, the H-4 EAD rule allows H-4 spouses of H-1B workers who are at certain stages of the green card application process to apply for employment authorization in the U.S. A regulation to rescind that rule has been expected since DHS put it on the agenda in late 2017. The lawsuit, Save Jobs USA v. DHS, was brought by a group of American tech workers who claimed that DHS lacked statutory authority to issue the rule and that the rule harmed American tech workers. A lower court ruled in favor of the government, and Save Jobs USA appealed the ruling. The D.C. Circuit Court of Appeals then put the case on hold for months as DHS worked toward issuing a rescission rule that would moot the case. In December 2018, the court restarted the case and set a briefing schedule.

In its brief filed Monday, DHS argued that the appeals court should affirm the lower court’s ruling, and argued that Save Jobs USA does not have standing to challenge the H-4 rule. DHS also urged the court not to decide whether DHS has the statutory authority to issue such a rule. DHS told the court that “a notice of proposed rulemaking is expected to shortly be issued that would propose to remove H-4 dependent spouses from the class of aliens eligible for employment authorization. If proposed and finalized, the new rule is expected to rescind the H-4 Rule being challenged and moot this case.”

BAL Analysis: The current H-4 regulation remains in effect and eligible H-4 visa holders may continue to apply for new and renewal EAD cards. The fact that the Office of Information and Regulatory Affairs is continuing to review the rule indicates that the rescission rule remains in progress and DHS is working toward issuing a proposed regulation. Following publication of the proposed rule, the public will have an opportunity to submit comments to the government, and it typically takes several months for the agency to issue a final rule. The agency has not indicated whether the rule will allow a transition period for current H-4 EAD holders to continue working for a designated period. BAL is closely following the H-4 rescission rule and will report any developments as the rule progresses.

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

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