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Trump Administration Removing the H-4 Limited Exception Work Authorization

Proposed regulation would rescind EAD for spouses of H-1B visa holders

According to several reports, by March 18, 2019, the Department of Homeland Security (DHS) is expected to publish a proposed regulation rescinding employment authorization documentation (EAD) for the H-4 spouse of H-1B visa holders.

Currently, only those H-4 spouses with H-1B primary applicants having received an approved I-140 Petition but unable to file the I-485 Application to Adjust Status to US Lawful Permanent Resident due to significant backlogs in the “green card” system are eligible for this EAD card. This benefit was originally provided to give these families relief from the significant delays between when the I-140 was approved and when these families became eligible to file the final step in the green card process and obtain work authorization for spouses and eligible dependents. In some cases, these delays can be up to 10 years.

Should DHS issue its proposed rule, a period of public comment would follow and, generally, these comment period can last 30 to 60 days. During the public comment period and before the rule goes final, all existing H-4 EAD rules, including the ability for H-4 spouses to file to renew EAD requests, must continue to be processed by the USCIS. Current regulations permit EAD renewals to be filed up to 180 days prior to expiration of current documentation.

CLIENT ACTION ITEM:  Clients of FordMurray should consider the following in light of this news:

  • If you are within the eligible 180-day period to extend your current H-4 EAD, you should file an extension now as it does not appear that existing EAD cards will be rescinded; and/or
  • If you are in an H-1B eligible position, i.e., the position requires a bachelor degree in a specific field and you hold the equivalent to a bachelor degree in that field or a related field, then you should consider requesting your employer file an H-1B under the next available “cap” period, which will open on April 1. Because this deadline is quickly approaching, you should speak with your employer soon as this process needs to begin as soon as possible to ensure a timely filing under the April 1 deadline. For more information on the H-1B Cap, please download our H-1B Guide for Employers or our H-1B Guide for Individuals.

FordMurray will continue to monitor the Trump Administration’s restrictions on H-4 EAD recipients. For now it appears that L-2 and E-2 dependents are not included in the EAD restriction rule but, again, FordMurray will continue to monitor this situation for any changes and will provide additional guidance in future Client Alerts.