Proposal to Rescind H-4 Work Authorization Pending at OMB
February 4th, 2019
It looks like DHS is close to publishing a regulation that will eliminate the eligibility for employment authorization of certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. Commonly known as the H-4 EAD rescission regulation, the rule was sent to the Office of Management and Budget (OMB) on February 20, 2019, and is currently pending review. OMB review is the last hurdle in the regulatory process before a notice of proposed rule making is published in the Federal Register and open for public comment. It is expected that the rule will be published as a proposal and thus will not take effect until finalized by DHS, a process that typically takes several months.
There have been some 90,000 approved applications for H-4 work authorization since the original 2015 rule was created by the Obama administration. Work authorization for H-4 dependents helps alleviate financial pressures of H-1B families that would otherwise have to manage on a single income. However, Save Jobs USA, a group composed of laid-off computer workers in California who claim their jobs were filled by programmers from India on H-1B visas, filed a lawsuit in 2015 to block the rule. That case remains pending before the U.S. Court of Appeals for the District of Columbia. An impending court deadline may be the reason why the administration is pushing forward the change at this time.