The End of H-4 Employment Authorization May Be Near

Practice Areas

By Sheetal Zumale and Joseph Chua

In May 2015 United States Citizenship and Immigration Services (USCIS) passed the “Employment Authorization for Certain H-4 Dependent Spouses” rule, which allowed more than 100,000 H-4 dependent spouses to get jobs in the US after many years of staying home.

Today, three years later, employers of H-4 Employment Authorization Document (EAD) workers are experiencing uncertainty as the rule faces suspension. A pending lawsuit and Department of Homeland Security (DHS) proposals could end work authorization for certain H-4 dependent spouses.

What is the H-4 EAD Lawsuit?

Before USCIS granted work authorization to certain H-4 dependents, an organization called Save Jobs USA filed a lawsuit against the DHS. The organization is comprised of IT workers who claim they lost their jobs because of H-1B workers.

This lawsuit was dismissed in September 2016 for lack of valid grounds. Thereafter, the same organization filed an appeal September 2018. They stated that work authorization for H-4 dependents does not protect US workers, and instead encourages foreign nationals to work in the US. The appeal is still pending.

DHS Plans to Revoke H-4 Work Authorization

The DHS action to revoke H-4 work authorization is in the proposal stage only. No changes have gone into effect. Certain H-4 dependent spouses are still eligible for work authorization, and they can still work legally.

There are a few steps that would need to happen before DHS can revoke work authorization for certain H-4 dependents. First, DHS would need to indicate a date when the proposal would take effect. The agency would also have to establish a comment period for people to submit feedback before making any policy changes. Our immigration team will watch the situation closely. We will provide an update as soon as one is available.

Opposition to H-4 EAD Revocation

Multiple members of Congress have written letters in favor of H-4 work authorization. One compelling example comes from Californian members of Congress, who wrote a letter to USCIS Secretary Kirstjen M. Nielsen. They argued that H-4 EAD spouses contribute to their household and the US economy.

This opposition has not yet succeeded in changing the intentions of DHS and USCIS to revoke H-4 work authorization for certain dependent spouses.

Conclusion

H-4 work authorization faces an uncertain future. The Department of Homeland Security (DHS) intends to abolish this authorization for certain H-4 dependent spouses. However, USCIS is still issuing H-4 Employment Authorization Documents (EAD) at the time of publication.

Our immigration attorneys will continue to watch this policy development closely. We will update readers as soon as we can. Consult with an experienced Chugh, LLP immigration attorney for any questions related to getting H-4 EAD, and alternate visa options.