DHS Formally Starts Process to Repeal H-4 EAD

The Department of Homeland Security formally moved to rescind the H-4 EAD last week by sending a proposed rule to the Office of Management and Budget (OMB) on February 20, 2019.  Unfortunately (but not surprisingly), the text of the proposed rule has not been made available to the public yet.

Once the OMB completes its review, which normally takes at least 30 days, the proposed rule will be published and the public will have a period to comment.  The comments need to be reviewed and addressed before the regulation can be finalized, a process that typically takes several months.

The proposed rule comes as a result of recent federal litigation where the government was ordered to respond to a legal challenge to the H-4 EAD.  Getting the H-4 EAD program repealed would render the legal challenge moot, which effectively is a victory for the administration. Otherwise, the program would have been at risk of judicial review.  In an earlier court battle, the H-4 EAD program had survived a legal challenge.

By way of background, the H-4 EAD provides work authorization for spouses of certain H-1B workers who are in the process of obtaining permanent residence through their employers.  Save Jobs, a group of U.S. technology workers, are challenging the H-4 EAD program, alleging it adversely impacts U.S. workers.

This alert is for informational purposes. Please contact us if you would like to discuss these developments further.