The Trump administration’s plans to end the ability of spouses of H-1B visa holders to be granted work authorization now appear to be on a slower track than originally anticipated. Removing eligibility for work authorization to this class of foreign nationals requires promulgation of a new rule, the first step of which would be the issuance of a notice of proposed rulemaking (NPRM). On February 28, 2018, the U.S. Department of Homeland Security (DHS) filed a status update with the U.S. Court of Appeals for the District of Columbia Circuit indicating a delay to DHS’s proposal to revise regulations pertaining to employment authorization documents (EAD) for certain H-4 dependent spouses of H-1B nonimmigrants. The court filing indicates that DHS anticipates submitting a proposed rule in time for publication in June of 2018.
Background on the H-4 EAD Rule
DHS published a final rule on February 25, 2015, allowing certain H-4 nonimmigrants to apply for EADs, which would permit eligible H-4 dependent spouses to engage in employment in the United States. The rule was intended to alleviate personal and economic hardship experienced by the families of H-1B nonimmigrants (who had reached certain stages in green card sponsorship) by allowing their spouses to provide a second source of income while they awaited finalization of the green card process—a process that can take years.
Lawsuit to Invalidate H-4 EAD Rule
In response to this rule, Save Jobs USA (an organization comprised of technology workers claiming to have lost their jobs to H-1B nonimmigrants) filed a lawsuit in the U.S. District Court for the District of Columbia on April 23, 2015. The court granted summary judgment to DHS on September 27, 2016, holding that Save Jobs USA lacked standing to file the lawsuit.
Save Jobs USA filed an appeal before the U.S. Court of Appeals for the District of Columbia Circuit on September 30, 2016. After Donald Trump assumed the office of President of the United States on January 20, 2017, DHS filed a series of motions asking the court to hold the appeal in abeyance to allow the Trump administration time to review its position on the Obama-era H-4 EAD rule.
DHS Initiative to Rescind the H-4 EAD Rule
On December 15, 2017, DHS issued an announcement stating its intention to propose a new rule entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” with a timetable for issuance of a NPRM in February of 2018. The court has since granted DHS’s requests to continue holding the appeal in abeyance to permit it time to begin the NPRM process.
On February 28, 2018, DHS issued a status update indicating that significant revisions to the draft proposal were required, necessitating a delay of the projected timeline. The status update further indicates that DHS’s current timeline anticipates the publication of the new proposed rule in June of 2018.
Next Steps
As a practical matter, DHS’s timeline for publication appears aggressive, and it is unlikely that a proposal would be publicly available for the required notice and comment until later in 2018, in turn making it likely that a final rule may not be issued prior to 2019.
The filing suggests that a new economic analysis, which is required for the rule, will take several weeks, after which DHS would need to conduct a final review of the proposed rule before submitting it to the Office of Management and Budget (OMB). The OMB, in turn, could potentially take several months to review the proposal before issuing it publicly. The publication would then be followed by a period for public comments before a final rule would be issued.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments regarding the status of the proposed rule and will post updates as additional information becomes available.
