After many months of speculation, the Department of Homeland Security (DHS) officially submitted a rule to the Office of Management and Budget (OBM) on February 20, 2019 proposing to eliminate the H-4 EAD. The proposed rule, titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” was designated by DHS as being “economically significant,” which means that DHS is requesting a comment period of only 30 days.
The details of the proposal are not yet public, but will be made public once OBM completes its review and publishes a notice of proposed rulemaking in the Federal Register, along with opening the proposal for comments. It is currently unknown whether the proposed or final rule would invalidate H-4 EADs that have not yet expired, nor how USCIS would treat applications for H-4 EADs that are pending when the rule becomes final. There is no set timeframe for publication of the final rule, but since it is a priority for DHS, we expect the regulation to be issued as early as late spring or summer 2019.
What is clear is that the new rule would prohibit H-4 spouses of H-1B professionals to have work authorization. It is estimated that this will impact about 100,000 spouses in the U.S., all of whom have had such work authorization since 2015. This will have a devastating impact on not just their families, but also their employers and the economy as a whole.
As a result, now is the time to consider whether these H-4 spouses qualify for other forms of work authorization, such as qualifying for their own H-1B, L-1, O-1, TN, E-3, or other basis for an EAD.
Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you need assistance in determining whether you or your H-4 spouse qualify for another form of work authorization.