New Proposal to Eliminate H-4 Employment Authorization

On February 20, 2019, the Department of Homeland Security took a major step forward in their plan to eliminate the program that allows employment authorization for the H-4 spouses of H-1B workers. The DHS sent a draft rule to the Office of Management of Budget titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” The OMB now has 30 days to review the proposal and provide their response, and if the White House approves the ruling, the public will have an open commentary period.

In 2015, the Obama Administration passed a proposal that permits certain H-4 visa holders to obtain work permits. Prior to that time, H-4 dependents of those in H-1B were not permitted to work. The 2015 ruling was not without its detractors. Some groups, such as SAVE Jobs USA, launched efforts to stop the proposal before it passed. SAVE Jobs USA filed an appeal with the D.C. Circuit in 2015, and renewed their challenge to the H-4 EAD ruling in January 2019.

WHO CURRENTLY QUALIFIES FOR H-4 EMPLOYMENT?

The H-4 EAD program has been open primarily to spouses of H-1B visa holders who are in the process of acquiring green cards. Employment authorization Documents are valid as long as an applicant remains in H-4 status, which is dependent on the principal H-1B beneficiary’s status.

WHO WILL THIS RULING AFFECT?

Since 2015, more than 100,000 Employment Authorization Documents (EAD) have been issued to H-4 visa holders. Now that this benefit may soon be revoked, tens of thousands of workers under this program are at risk of losing their jobs. Critics of the DHS’ ruling have condemned it as having a clear gender bias, since more than 90 percent of H-4 EAD holders are women. If the program is cancelled, it will also impact H-1B spouses who rely on a two-income household in order to remain in the U.S. and cover expenses such as mortgages and schooling for college-aged children.

Many critics of the proposal claim that spouses working in H-4 status provide an impactful economic benefit to the U.S., which will ultimately be lost if they cannot work and there are not enough U.S. workers who qualify to replace them. The new ruling would also negate the Department of Homeland Security’s Final Rule published in 2015 that sought to “reduce personal and economic burdens faced by H-1B nonimmigrants and eligible H-4 dependent spouses during the transition from nonimmigrant to LPR status.” and “…support the goals of attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses…” when H-1B holders chose to leave the U.S.

WHAT WOULD HAPPEN TO THOSE CURRENTLY WORKING IN H-4 STATUS?

To date, the DHS has not confirmed how they will implement the revocation, or whether or not EAD holders who are currently employed will have to leave their jobs. If work authorization is revoked for current holders, there would be no recourse for renewing EAD cards when extending H-4 status. Moreover, those working in this status may be mandated to relinquish their employment by a specific date. This prospect has caused a growing backlash from multiple groups that advocate for immigrant rights, and there has been some bipartisan efforts in Congress to stop DHS. A petition has also been uploaded onto the White House’s website by an information technology group, IT Pro Alliance, appealing to the government to “keep skilled workers at their jobs”.

The rollback of work authorization for H-4 spouses has yet to be enacted or implemented, but appears to be a real possibility. To learn more about this ruling and how it may affect the options of H-4 workers, be sure to speak with an experienced immigration attorney.