In February 2015 USCIS unveiled a new regulation permitting certain H-4 spouses to apply for employment authorization starting on May 26, 2015. This regulation has been well received by H-1B workers and their spouses, and U.S. companies that seek to attract and retain highly skilled H-1B workers. However, as could be expected, certain individuals and organizations that oppose the expansion of legal immigration benefits have come out against the regulation.

SAVE Jobs USA, a group of computer workers who lost their jobs to H-1B workers, has – with the backing of at least one established anti-immigration organization -- filed a declaratory suit with the U.S. District Court for the District of Columbia seeking to halt and vacate the H-4 spousal EAD regulation. Save Jobs USA argues that USCIS lacks the statutory authority to grant employment authorization to H-4 spouses, and that they would be harmed by having to compete for jobs with additional H-4 workers entering the labor market. Although the Immigration and Nationality Act appears to grant limitless authority to the Attorney General to grant employment authorization, it is also noted that the Act was amended by Congress in 2002 to grant employment authorization to spouses of E and L workers. In practice, over the years Congress and the executive branch have effectively shared responsibility for determining which individuals are/are not authorized to work in the United States.

DHS and Save Jobs USA filed reply briefs with the court on May 11th and May 15th, respectively. It is not known whether the court will issue a ruling prior to the May 26th implementation date. In February, USCIS promised the release in early May of a detailed FAQ on implementation of the new regulation. The public was also informed that a revised I-765 application form would be released prior to May 26th. Now, just one week before USCIS will purportedly begin accepting applications, it is not clear why we have not seen either of these items, or whether the inaction may be related to the pending lawsuit.

We will continue to provide updates in the days and weeks ahead, as the fate of the H-4 spousal EAD regulation becomes known.