After realizing that Congress was not willing to pass immigration reform, President Barack Obama made several regulatory changes meant to improve our immigration system for legal immigrants, many of whom have been trapped for years in a slow and backlogged system often described as outdated and broken. One of these changes included allowing the spouses of skilled H-1B visa holders who were on their way to obtaining green cards to get work permits. This regulatory change was particularly important for nationals of countries with significant green card backlogs, many of whom may wait a decade or more to obtain U.S. permanent residence. These spouses have H-4 dependent visas that did not allow them to work before the 2015 regulation issuing employment authorization documents (EAD) to H-4 dependents whose spouses had obtained an approved immigrant visa petition (I-140) but who could not apply for green cards yet because of the backlogs for nationals from countries like China and India. The backlogs for Indian nationals are particularly onerous and result in wait times that are decades long.
In 2017 the Trump administration announced its intention to publish a regulation to rescind the H-4 work permit (EAD) for spouses of H-1B skilled workers. A lawsuit was also filed by U.S. tech workers claiming the H-4 EAD regulation resulted in Americans losing jobs to spouses of H-1B visa holders and that the Obama administration did not have the authority to issue the regulation. This lawsuit has been working its way through the courts while the removal of the H-4 EAD regulation has been on the Trump administration regulatory agenda since at least the spring of 2018. In February 2019 the new regulatory rule cancelling the H-4 EAD program was submitted to the Office of Management and Budget (OMB) for review. OMB review usually takes up to 90 days but as of now, July 2019, the OMB has still not completed its review. OMB review is only step four in the nine steps required for issuance of a new regulation. After OMB review the proposed rule must be published in the Federal Register and subjected to a public comment period that normally may last up to 60 days. The administration must then consider the comments and may change the rule before the final rule is published. In the meantime, the lawsuit challenging the H-4 EAD regulation continues and the House of Representatives has proposed a bill protecting the H-4 EAD (H4 Employee Protection Act).
In summary, the H-4 EAD program for spouses of H-1B visa holders will not be cancelled for many months, given the current stage of the regulatory process. In fact, given 2020 is a presidential election year, it is likely it may not be cancelled at all during Trump’s current term in office. As of now spouses of H-1B visa holders that have an approved I-140 immigrant visa petition can still apply for an EAD. However, it may take five to six months or more to get an EAD approval, as processing times for EAD approvals and H-4 extensions continue to get longer. If and when the Trump administration does cancel the H-4 EAD program, the work permits already issued to H-4 spouses may not be immediately revoked. When Trump has tried to end other Obama work authorization programs, such as the DACA program for young undocumented immigrants, he ordered USCIS to stop accepting new applications and valid work permits were simply allowed to expire. Note also that if the Trump administration does end the H-4 EAD program there may be lawsuits challenging his authority to do so, like the lawsuits opposing his termination of Obama’s DACA program, and this may also further delay or limit his ability to rapidly cancel the H-4 EAD program. Consult with your immigration attorney about the current status of the program and the latest developments.
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