H4 EAD – Latest Update – DHS to Propose New Rule to Revoke [Feb 21, 2018]

Raghuram Sukumar H4 Visa 24 Comments

DHS has published the Rule Making Agenda for 2018. It includes a Notice to Propose a Rule to Remove H4 EAD for certain spouses along with other Immigration related notices. In this case, certain spouses could be everyone with H4 EAD.

Happy Schools started tracking H4 EAD Rule Making since 2012. H4 EAD became effective on May 26, 2015. For H4 EAD community, it was a hard fought battle to get this Rule Proposed and Published in Federal Register.

As per leaked memo from Jan 2017, both H4 EAD and STEM OPT was considered to be revoked. As of today, notice is posted to propose a rule to Revoke H4 EAD.

Here’s the timeline since H4 EAD Rule become effective:

  • Mar 1, 2018 – Proposed Rule to Terminate H-4 EAD Program Delayed Until June or Later
  • Feb 21, 2018 – Court has ordered DHS to provide progress on Rule Making to Revoke H4 EAD every 90 days.
  • Dec 22, 3017 – DHS asked for abeyance (no hearing on this case) until July 2018. It’s an indication that H4 EAD could be removed by then.
  • Dec 14, 2017Notice to Propose Rule to Remove H4 EAD
  • Sep 29 , 2017 – Trump Administration asked for 60 days extension until 12/31/2017
  • Apr 2017 – Trump Administration asked for 6 months extension
  • Feb 2017 – Trump Administration asked 60 days extension
  • Sep 28, 2016 – New challenge filed against DC Court Ruling
  • Sep 27, 2016 – Lawsuit was dismissed in the District Court
  • April 2016 – New Lawsuit filed to Challenge the Rule in district court (by Save Jobs USA)
  • May 26, 2015 – UCSIS will accept applications for ED for H-4 Visa

Feb 21, 2018 – Granted the motion for abeyance

  • If Save Job USA had asked the court to schedule an oral argument, so court can issue a ruling. If Save Jobs USA won the ruling, then H4 EAD would be eliminated right away.
  • Now, with Court granting abeyance (a condition of being undetermined or in a state of suspension or inactivity), DHS would have to report the status of Rule Making to revoke H4 EAD every 90 days. 
  • This buys more time for H4 EAD holders to continue to use and benefit from H4 EAD.
  • DHS is expected to propose the Rule to revoke H4 EAD in Feb 2018 as per court order.

Expected Timeline for H4 EAD Rule Making

  • Rule Make is a long process, as we learned from H4 EAD Implementation
  • There could be additional lawsuits to slow down the Rule Making process (Save Jobs USA wanted a quick decision, so it H4 EAD could be removed immediately).
  • There’s no way to tell how long this Rule Making process would take. But, I did read from an Immigration Blog that, DHS has an option to revoke as quick as 30 days because of “Economically Significant” category.

Advocacy Efforts

It’s not going to be an easy decision to accept for the Immigration community about H4 EAD being revoked, when H4 EAD was issued only to certain spouses, who have pending I-140 approval.

There are advocacy efforts going on to stop H4 EAD from being removed. Please take part actively by reaching out to your representative.

Notice to Propose Rule to Remove H4 EAD

  • Title: Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization
  • Abstract: On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule. DHS is proposing to remove from its regulations, certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

Points to Ponder:

Here’s my guess and thought process on what could happen and notice that it’s my opinion and I’m not a legal professional:

  • The rule is not yet proposed, but a notice to Propose a Rule is posted
  • When the actual rule is proposed, it would contain actual language of the rule.
  • The rule is considered under “Economically Significant” category.
  • How Long for Rule to be Effective:With Public Comments and Review of Public comments, it could take few months to Publish the Rule to be effective?
    • I read about the possibility of skipping the public comments does exists for rule under Economically Significant (someone please clarify if this is possible)
  • Possible Outcomes for current H4 EAD Holders: Allow current H4 EAD holder to continue to renew
    • Let H4 EAD expire after a certain time (No Renewal when current H4 EAD Expires)
    • Abruptly terminate H4 EAD validity when rule becomes effective
  • What’s Next: Learn about Rule Making Process and be ready to Participate in Public Comments
    • Public comment is not yet open.
    • When Open, learn how to write an effective comment with your personal story.
  • When it comes to Immigration, have a Plan A, B and C when things are going according to your plan and Plan A, B and C when things are not working out as per you plan.

Above points to ponder my quick take on this Rule Making Agenda that includes a notice to propose a Rule to Remove H4 EAD. Additional talks from other are here and here.

Post any questions about this Notice to Propose a Rule to remove H4 EAD in the comments section below.

Comments

  1. Would this revoke the EAD issuance for new applicants or all current holders of EAD? Any ideas?

  2. what will happen to the existing H4- EAD. People who EAD is already valid for certain period.
    ?

  3. Hi, I have graduated in May 2017 with a degree in Chemical Engineering and facing tough time finding jobs with F1- OPT status. I am getting married in March 2018 and my fiance has an approved PERM status for green card and expecting to receive i140 by March 2018. I want to apply for dependent status H4 EAD and look for jobs but given the circumstances about revoking this rule, what do you suggest is my best shot?

    1. Author

      Sindhu – There are no easy option other than Green Card or H1B Visa. You may want to look into other countries.

    2. It will take around 6-9 months at the minimum for H-4 to be revoked. Get married, get your H-4 EAD by then. You are fine. Go to the site link from perchingtree above, read the timeline. You are safe buddy.

    3. the choice you make will haunt you forever about staying in US and begging to work. unfortunately your indian passport is worth of thrash for the US immigration system.
      Your significant other person having the same passport does not help you as well.
      If you are smart and educated and want to live in US then you should get married to non indian and get your GC in 2-3 years and do whatever you want….study…open a business….work for anyone…. Anyone can get PERM done, i have one too….but I have been waiting for green card for more than 8 years after I-140.
      Be sure with whom you get hitched with, your dreams will never come true (he/she) might be the best person on planet…..but you have to be practical too.

    4. if ur looking for other countries canda is best bet for you. It is easay to get PR in Canada.

  4. Hi Raghu – Is it possible to file H4EAD in Feb/March-2018?

    My current H-1B is valid until July-2018, so I will eligible to file my next extension sometime in Feb next year. I am planning to file (H1 renewal + H4 (COS) + H4EAD) all together under premium processing.

    Would you think I”ll be eligible to do this until H4 EAD new proposed rule will not be finally published?

  5. Raghu , I changed from H1b to H4Ead, and my EAD is set for renewal next August.

    I now have a full time job at fortune 100 company with my H4EAd and my husband works for the same company .

    If this rule gets published sometime next year , and I end up in applying for renewal in February ( 6 month rule) , can you let me know what are the odds for missing my next extension because of this revocation .

    1. Author

      At this time, we don’t now how the Rule will look like or any other details. But, I would ask folks to be cautious and plan for worst case. When the Rule is proposed, we would know more details. Having H1B always helps in this scenario. Good Luck.

  6. I have already applied for H4 EAD renewal and USCIS has received it on November 21, 2017. Any changes to H4 EAD rule can also affect the existing application in progress?

  7. I have changed my visa from F1 (I already had my STEM OPT approved till feb 2019)to H4 EAD .Now if the government decides to remove work authorization do I have the ability to switch back to my previous status (F1 OPT) and continue to work till my previous work authorization expires .

  8. Hi All,

    I am currently working for an IT company and have H4 EAD till 09/10/19. I also have an offer for another company with 70% hike but the new company would not file my H1B if H4EAD is revoked.

    My current employer might raise H1B if H4EAD is revoked.

    What are my options? Should I take the new offer and might go to a consultancy when H4EAD is removed or stay back with my current employer?

    Are there any chances, H4EAD still stays back or the existing H4EADs will be allowed to renew.

    Regards,
    Abhi

  9. Hi, I am doing masters currently and Now with chances of ead being revoked and with only one semester remaining in my degree program, I am in a fix. am I eligible for F1 OPT if I apply for F1 in my final semester. What are my options.

  10. Hi Raghu,

    I started my Masters in US on H4 status and now thinking of changing it to F1. Am I eligible for OPT if I am in F1 fo just one semester before I graduate.

    Need to understand whether this is correct:
    To become eligible for OPT, at the time of OPT application you should be in valid F1 status and should have completed 1 full academic year as full time student. The 1 full academic year condition could have been completed on different nonimmigrant status like H4. So it is not necessary to complete 1 full academic year condition on F1 status to be eligible for OPT.

    Can you please guide me on this.

    1. Author

      Depends on your school and of they would issue I-20 for OPT.

  11. Any new on this proposed rules, I have not heard anything. in the register it says that proposed role will come by feb-2018. I have not seen anything till now (feb-20-2018)? any news on this.

      1. Court passes baton to DHS, says respond in 90 days on its stated intention in Fall 2017 to revoke the EAD for H4 dependants of H1B workers

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