H-4 EAD rescission rule undergoing DHS review

21 Aug 18

UNITED STATES

The Department of Homeland Security is moving forward with plans to rescind the H-4 work authorization regulation and a proposed rule is undergoing final clearance with the agency, according to a status update DHS provided to a federal court Monday.

DHS attorneys said in the court filing that the agency’s intention to rescind the H-4 regulation “remains unchanged” and that final DHS review of a proposed rescission rule is ongoing with senior DHS leadership “actively considering” the rule for approval. Separately, in recent remarks to the Center for Immigration Studies on Aug. 15, U.S. Citizenship and Immigration Services Director L. Francis Cissna stated that the proposed rule is in the works but is competing against other regulatory priorities.

What the update means:

  • The H-4 regulation remains in effect, but DHS and USCIS have indicated that a rescission rule is coming soon.
  • It will take several months for a proposed rule to become a final rule. Following clearance by DHS, the proposed rule would then undergo review by the Office of Management and Budget before it is published in the Federal Register. After a proposed rule is published, a public notice and comment period of either 30 or 60 days will begin. DHS will then review comments and may make changes before publishing a final rule containing an effective date.
  • DHS has not stated whether current H-4 visa holders will be afforded a transition period during which they would be allowed to renew their Employment Authorization Documents (EADs) for a limited time.

Background: The current H-4 regulation, which was promulgated in 2015 under the Obama administration, allows spouses of certain H-1B workers with pending green card applications to apply for an EAD. An estimated 71,000 H-4 spouses have benefited from the regulation and the anticipated rescission rule is being closely watched.

DHS stated its intention as early as December 2017 to rescind the H-4 regulation, both in its semiannual regulatory agenda and in court filings in a lawsuit that challenges the current regulation as unlawful. The court has held the lawsuit in abeyance based on DHS’ assertion that it is planning to rescind the current regulation. DHS originally planned to release a proposed rescission rule in February, but notified the court that it needed to revise its economic impact assessment and expected to release the rule in June. The agency did not provide an estimated timeline in its latest status report to the court.

BAL Analysis: The DHS update indicates that a proposed rule is nearing approval by the agency and will soon move to the next stage of review. Meanwhile, the H-4 regulation remains in place, meaning that eligible individuals may continue to apply for EADs and renew their current documents until a final regulation becomes effective, after a process that will likely take several months. In the meantime, employers and employees may wish to discuss alternative options for H-4 dependents. Companies and families affected by the anticipated repeal of the H-4 regulation are encouraged to submit comments to DHS during the notice and comment period that will begin when the proposed rule is published. BAL is following these developments and will report when the proposed rule is published.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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