Over the last few months, the U.S. Department of Justice (DOJ) and U.S. Department of Homeland Security (DHS) have unabashedly and repeatedly stated that is the current administration’s intent to rescind employment authorization for H-4 visa status holders.
By way of background, in 2015, DHS extended employment authorization eligibility to certain H-4 dependent spouses of H-1B nonimmigrants who (i) were seeking employment-based lawful permanent residence status and were the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or (ii) had been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. This amendment to the regulations was part of President Obama’s executive actions on immigration.
Not long after the regulation went into effect, a lawsuit was filed challenging the regulation by Save Jobs USA, a group of high-tech workers. Essentially, Save Jobs USA argued that DHS lacked the authority to issue the H-4 EAD regulation. Save Jobs USA lost in the district court, but subsequently appealed the decision just before the current administration took office.
Once the current administration took over, DOJ had very little no interest in defending the regulations and asked the Court for time to possible make changes to the regulation.
After multiple requests for additional time, fast forward to February 21st. At that time, DOJ requested that the case be held in abeyance because DHS had announced its intention to rescind “the H-4 Rule in its current form and remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.”
Yet, while DHS’s intentions regarding the H-4 EAD program are clear. How DHS will go about unwinding the program remains a mystery. An announcement on the issue was expected by late February 2018.