Beginning May 26, 2015, certain H-4 dependent spouses are eligible to apply for employment authorization in the form of an “EAD” card. The Department of Homeland Security (the Department) was cleared to begin issuing EAD cards to these dependent spouses after a district court judge in the DC circuit declined to delay the implementation of the Department’s new H-4 EAD rule, which was published in December 2014.

The New H-4 EAD Rule for Dependent Spouses of H-1B Visa Holders

H-4 spouses may apply for employment authorization if their H-1B spouse is in the process of applying for permanent residency and either has an approved Form I-140, Immigrant Petition for Alien Workers, or has received an extension of H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The Department asserts that the H-4 EAD rule will support the retention of highly skilled workers who are proceeding through the permanent residency process by addressing the financial and economic challenges that H-1B visa holders and their families often face while they wait to secure US permanent residence and, thus, work authorization for spouses. Specifically, for many foreign nationals in the EB-2 and EB-3 categories, obtaining a green card is a lengthy process that lasts many years—in some instances taking nearly a dozen years to complete. H-4 dependent spouses, prior to this new rule, were required to wait until an application of permanent residency was in process before securing work authorization.

The inability to secure work authorization for their H-4 spouses has resulted in some H-1B visa workers foregoing the permanent residency process and returning to their home countries. The rule change thus seeks to encourage H-1B visa holders to pursue permanent residency and to retain highly skilled workers as part of the Department’s stated goal. The Department anticipates that approximately 179,000 H-4 dependent spouses will be eligible for an H-4 EAD over the next year, and approximately 55,000 H-4 dependent spouses will be eligible in subsequent years.

USCIS Suspends Premium Processing for Certain H-1B Petitions, Relocating Resources to Adjudicate H-4 EAD Applications

In order to implement and timely adjudicate H-4 EAD applications, US Citizenship and Immigration Services (USCIS) has suspended premium processing for H-1B extension petitions as of May 26, 2015. USCIS is currently planning to restore premium processing on July 27, 2015.

Premium processing requests for H-1B extension petitions filed before May 26 will be honored. However, USCIS will continue to accept premium processing requests for H-1B petitions subject to the H-1B cap and H-1B cap-exempt petitions that request a change of nonimmigrant status or consular notification. USCIS will also continue to accept premium processing requests for H-1B petitions for those already in H-1B status with an employer when the employer is requesting consular notification or an amendment of a previously approved petition that does include a request for an extension of status.

On the Horizon

Lawsuit Challenging H-4 EADs Rule Continues Despite a DC Court’s Denial of Injunctive Relief

On May 26, 2015, a federal judge in the DC Circuit denied a preliminary injunction filed by a group of former Southern California Edison Company employees who are challenging the Department’s new rule permitting certain H-4 dependent spouses to apply for work authorization. The lawsuit alleges that the new rule directly contradicts the Immigration and Nationality Act (INA), which prohibits H-4 dependent spouses from working, and deprives US workers of statutory protections against foreign workers. Though a federal judge denied an injunction, the workers’ legal challenge will continue onto a hearing to address whether the Department’s H-4 EAD rule violates the INA.

H-4 dependent spouses should closely monitor this case, as other proposed changes to immigration programs have been halted due to court rulings. For example, though an expanded Deferred Action for Childhood Arrivals and the implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents were set to take effect February 18, 2015, an injunction was granted by federal Judge Andrew Hanen in February, which was recently upheld by the Fifth Circuit.