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.
The updated version of this article is here – H4 EAD Rule To Be Revoked by USCIS
Happy Schools started tracking H4 EAD Rule Making since 2012. H4 EAD became effective on May 26, 2015. For the 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, 2017 – Notice 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 the 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.
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 exist 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.
Post any questions about this Notice to Propose a Rule to remove H4 EAD in the comments section below.
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