A recent court filing by the U.S. Department of Homeland Security (DHS) reaffirms the agency’s commitment to rescinding the H-4 rule, which provides work authorization to eligible spouses of certain H-1B visa holders who are in the process of becoming lawful permanent residents. In the document, DHS stated that its “intention to proceed” with the proposed rescission rule “remain[ed] unchanged,” but DHS did not address when it expected to publish the new rule.

In December of 2017, DHS announced its plan to rescind the H-4 rule in light of the priorities outlined in President Trump’s “Buy American and Hire American” executive order. At the time, DHS was expected to publish the proposed rescission rule in February of 2018, but publication has been postponed twice since then. When asked about the current timeline during a recent interview, U.S. Citizenship and Immigration Services Director L. Francis Cissna said the “regulation is still being worked on” and that it is “fighting for attention with a number of other regulations, some of them much bigger, probably more important, and not all of them from my own agency within DHS.”

It is important to note that, at least for now, the H-4 rule remains unchanged and that even once DHS formalizes the proposed rescission, it is likely to be several months before a final rule can be implemented. In the meantime, eligible H-4 spouses may continue to apply for or renew their employment authorization documents. This may also be a good time for H-4 spouses to explore their options and determine if they are eligible for any other visas that will provide them with the authority to work.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the rescission of the H-4 rule and will post updates on the Immigration blog as additional information becomes available.

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