Since May 26, 2015, certain H-4 dependent spouses of H-1B visa holders have been eligible for employment authorization. H-4 dependent spouses have been eligible to apply for an Employment Authorization Document (EAD card) if the primary H-1B visa holder is the beneficiary of an approved Form I-140 or has been granted an extension beyond the standard six year limit of H-1B status. If granted, the H-4 dependent is eligible to work for any U.S. employer during the granted period of EAD validity. According to USCIS, the H-4 EAD rule seeks to support the goals of attracting and retaining highly skilled foreign workers and minimizing disruption to U.S. businesses.
In 2015, a group named “Save Jobs USA” challenged the H-4 EAD rule and requested an injunction against such rule, with such challenge ultimately being dismissed. The group has since filed an appeal of the dismissal, with the U.S. Department of Justice under the current administration recently filing a brief in support of such challenge. Immigration Voice, an immigration advocacy group, subsequently filed a motion to intervene on behalf of individuals currently working with H-4 EADs.
It is important to note that there has not yet been a court decision. In the event that the H-4 EAD is canceled, an immediate effect is unlikely because any change will require a formal rule-making process, which would take a few months at the least.
However, if an injunction against the H-4 EAD rule is issued, companies may be required to remove such individuals from payroll, as they may no longer hold employment authorization. The current litigation does not cover other categories of EADs, such as L-2 dependent spouses of L-1 visa holders.
Individuals holding an H-4 EAD and companies employing those who hold an H-4 EAD may wish to consider filing an H-1B cap petition if possible. The H-1B category is designed for foreign professional workers holding a bachelor’s degree or higher and authorizes a foreign professional to work in the U.S. in a “specialty occupation.” The H-1B employment start date for cap-subject petitions filed for fiscal year 2018 is Oct. 1, 2017. USCIS begins accepting these petitions on April 3, 2017.
If you are interested in applying for an H-1B cap-subject petition or have questions to see if you qualify, please contact our office right away. Due to the filing time constraints, our office must receive all information and necessary documentation by Monday, March 20, 2017.
Our office will continue to very closely monitor this situation and will be sure to keep our clients up-to-date with the most accurate and timely information.