EADs for H-4s, Alive But Not Well

The internet is abuzz with concern over the potential elimination of employment authorization (EAD) for H-4 spouses. These individuals are typically educated and highly skilled in their own right, so the likely loss of work authorization is being watched with great concern.  This group was not previously eligible to work in the United States because their dependent visa did not allow for employment.  The Obama administration freed up this talent pool by allowing those whose spouses had approved I-140 cases to apply for free-market, temporary work authorization.  From October 2015 to September 2016, 41,526 people received such authorization.

The new administration has targeted the H-4 EAD program because its users are perceived to be vying for American jobs and the program does not require any degree qualifications.  Families who await employment-based priority dates could again become reliant on only one income, encouraging some to simply "give up and go home," a win for the administration.  The H-4 EAD is also being challenged in a lawsuit by Save Jobs USA and the government has received several continuances in the defense of its position.  This has delayed the matter while the government prepares to release a new regulation rescinding work authorization for H-4 visa holders.

Have EADs for H-4s Been Revoked?

NO. There has been no revocation or cancellation of any currently approved EAD cards.  Rather, the program was referenced in a recent list published by the Office of Information and Regulatory Affairs.  This list, referred to as the Unified Agenda, is a glimpse at what regulations are currently under development and review; a rule revoking or changing the EAD has not been published and is not yet in effect for now.  Publication of a new rule on the issue is expected to take place in February 2018, based on publication notes.

When Might a Revocation Begin to Take Effect?

Absent some compelling circumstances, the rule-making process requires a notice and comment period.  Regulatory changes are not made effective immediately and allot at least 30 days before effectivity.  Depending on the contents of the proposed rule itself, it could still be some months before any revocation of the program occurs. It's likely to be Spring before revocation of the program would actually begin.

Until the rule is published, we will not know whether EADs would end on a specific date or whether the status would simply not be renewable once expired.

What Should I Be Doing Right Now?

If you currently have an H-4 EAD, check its expiration date.  If you are within the 180-day window preceding expiration, we can file for an extension now.  This could potentially be the last extension available to you, and it's prudent to get a case filed and approved before the new rule takes effect.

Many states link eligibility for a driver's license to EAD expiration dates.  Renew your license in conjunction with a card renewal, where appropriate.

Is H-1B an Option?

Yes, those who qualify for their own H-1B should consider this option for an April 1, 2018 filing.  Qualifications include a bachelor's degree or higher from an accredited college or university and the degree must be required to perform the occupation.  If you have a job offer from an employer willing to sponsor a visa and would like to change status from H4 to H-1B next year, now is an excellent time to begin discussing filing strategy with one of our attorneys.