USCIS Initiates Rulemaking Process to Terminate H-4 EAD Work Authorization

Hannah F. Little, Esq., Partner
Hannah.Little@garfinkelimmigration.com

On December 14, 2017, U.S. Citizenship and Immigration Services took the first steps in the rulemaking process to take away the H-4 EAD work authorization for certain spouses of H-1B visa holders. Please note this is a preliminary step in the rulemaking process; the H-4 EAD remains available and valid until and unless a new rule is finalized and made effective.

The notice states that the Department of Homeland Security ("DHS") is reviewing the 2015 H-4 EAD rule in light of President Trump's Executive Order 13788, "Buy American and Hire American." Furthermore, DHS proposes to "remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization."

Possible Timeline

The rulemaking process generally takes at least several months. USCIS has indicated a plan to publish the proposed H-4 revocation rule in early 2018. Once a proposed rule is published, it is subject to a public comment period. Comment periods may last for 30 - 180 days, depending on the complexity of the rule. The close of the comment period is followed by a period of review and possible revision. Lastly, a final rule is published with a future effective date. Considering the various steps in the rulemaking process, the soonest a possible H-4 EAD revocation rule would take effect would be several months.

Implications & Recommendations

At this time, USCIS has only advised of its intent to publish the proposed rule and it has not published the content or language of the proposed rule. This means, at this time, the impact on current and future H-4 EAD applicants is uncertain. Based on this administration's repeal of the DACA program, we anticipate that previously issued H-4 EADs will continue to be valid through their expiration date.

We will continue to monitor this issue and provide updates as they become available. In the meantime, we recommend filing initial and renewal H-4 EAD applications as soon as possible. We encourage employers and H-4 EAD holders to begin considering alternatives to the H-4 EAD, should the proposed rule be published and finalized.