Skip to main content

Proposed H-4 EAD Rescission

One advantage of the H-1B visa is that immediate family members of the H-1B visa holder may apply for an H-4 visa, which will allow them to lawfully stay in the United States. What is more, the holder of an H-4 visa, who is seeking employment based on lawful permanent resident status, is eligible to acquire an Employment Authorization Document (EAD) and work in the United States. H-4 visa holders have been eligible to work in the United States since 2015.
Recently, however, things have begun to change for H-4 visa holders. In October of 2018, the Department of Homeland Security released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan, which provides the public with an overview of possible regulations that are in the works. The regulations featured in the Unified Agenda are only aspirational, but they nonetheless communicate a sense of what direction future regulations may be headed.
One DHS proposed regulation that appears in the Fall 2018 Unified Agenda is titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” This proposed regulation is intended to amend the 2015 rule. The rule would bar H-4 visa holders from eligibility for employment authorization.
The Fall 2018 Unified Agenda estimated publication of this proposed rule in November 2018. However, the rule has been sent to the Office of Management and Budget (OMB) and is currently pending review. Once OMB has finished its review, a notice of proposed rulemaking will be published in the Federal Register, at which point the rule will be open to the public for notice and comment. Finally, the proposed regulation will not take effect until finalized by DHS, a process that typically takes several months.
Due to the time required to finalize the new regulation, the forthcoming proposed rule will not have an immediate impact on H-4 spouses. DHS is expected to continue to allow H-4 visa holders to work until the new regulation is finalized and implemented. Eligible foreign nationals who plan to apply or renew an EAD under the H-4 program should do so as soon as they can. At Berardi Immigration Law, we will be keeping a very close eye on the development of this new rule. If you have any questions or concerns, or if you are interested in applying for, or renewing an H-4 EAD, please contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!