By Attorneys Brittany M. Milliasseau and Nancy E. Miller
During the Obama administration, the Department of Homeland Security (DHS) enacted a rule that allows the spouses of certain H-1B specialty occupation workers to apply for employment authorization documents (EADs). Prior to the enactment of the rule, the H-4 spouse of an H-1B visa holder could live in the United States, but was not authorized to work. Thus, numerous highly-skilled and advanced degree individuals, who chose to accompany their spouses to the U.S. were unable to pursue employment opportunities in the U.S. The H-4 EAD rule which went into effect in May 2015, changed the long-standing regulation and allowed H-4 nonimmigrant spouses of H-1B workers to apply for work authorization if their H-1B spouse is in process of becoming a lawful permanent resident. Specifically, the H-1B holder must be the beneficiary of an approved Form I-140, Immigration Petition for Alien Worker, or have been granted H-1B status pursuant to certain sections of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act, often referred to as “AC21.”
The H-4 EAD rule was initially aimed at reducing “personal and economic burdens faced by H-1B nonimmigrants and eligible H-4 dependent spouses during the transition from nonimmigrant to LPR status,” as well as “attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses resulting from H-1B nonimmigrants who choose not to remain in the United States and pursue LPR status.”
While the H-4 EAD program has provided a much-needed pathway for H-4 visa holders to earn an income, it has also been challenged by certain groups claiming that the rule threatens the jobs of U.S. workers. Shortly after the H-4 EAD rule was announced, an organization of technology workers filed a lawsuit against the federal government arguing that DHS lacked the statutory authority to allow H-4 visa holders to work in the U.S. Further, the plaintiffs argued that the new rule injured its members as they would be forced to compete with both H-1B and H-4 workers for jobs. The case was initially dismissed but plaintiffs appealed the ruling. In February 2017, DHS was granted an additional 60 days to assess the rule and “allow incoming leadership personnel adequate time to consider the issues.” Earlier this week, after the 60-day abeyance which ended on April 3, DHS then asked the Circuit Court for additional time. This time, the request for was an additional 180 days to allow DHS time to “reconsider the H-4 Rule and whether issuance of a notice of proposed rulemaking relating to it is appropriate.” In its filing, DHS also offered to “update the court every 60 days concerning the Department’s review” and to “inform the Court promptly should it determine new rulemaking is or is not appropriate before 180 days elapse.”
Many H-4 spouses and their family members are now concerned about the future of their work authorization and their ability to earn an income. If the current administration revokes employment authorization for H-4 spouses, numerous families could be in economic jeopardy. Families may lose a household income and financial situations could be dramatically changed resulting in economic hardship for many, especially families that have become accustomed to dual family incomes. As of right now, there have been no changes to the H-4 EAD rule, but there is a possibility that DHS could amend the existing rule, publish a new rule, or even terminate the rule.
The challenge to the H-4 EAD rule is a stark reminder of the uncertainty that is present in the immigration system – uncertainty that has recently been heightened due to the new presidential administration.
If you believe that you may be eligible for work authorization under the H-4 EAD program, it is best that you speak with an experienced immigration attorney to discuss eligibility. Additionally, if you think that you may be eligible for another type of immigration benefit, you should consult with a knowledgeable immigration attorney who may review your immigration case history and determine whether you are currently eligible for any immigration benefits, particularly a benefit that may no longer be available in the near future.