Removing H4 EAD - Rule Making Process - Latest Updates with Timeline
H4 EAD Rule was proposed back in February 2012. I have tacked each and every update since then to the effective date on May 26, 2015.
I was standing at Observation Desk of Empire State Building when the I-765 form was published by USCIS that had the code for H4 EAD application. Believe it or not, it took exactly 26 minutes (I timed it!) to reach the ground floor from the observation deck, and few minutes of walk to nearby FedEx store to find a PC, so I can post an update about the availability of new I-765 form on the blog.
I was excited about the opportunities H4 EAD will open up for the H4 spouses. It's really painful to write about to about Removal of H4 EAD.
What's Covered In This Article
H4 EAD Revoked or Revised? The Latest Updates from DHS and USCIS
In the earlier version of this article, Removing H4 EAD Rule Making Process, I have listed a similar timeline in a list and possible outcomes. Here in this improved edition, you can get a much better view of the timeline and the process.
May 26, 2015
May 26, 2015 – UCSIS will accept applications for H4 EAD for the first time after a lengthy rulemaking process.
April 23, 2015
April 23, 2015 – New Lawsuit filed to Challenge the Rule in the District Court (by Save Jobs USA)
September 27, 2016
The U.S. District Court at the District of Columbia dismissed a lawsuit filed on April 23, 2015 by Save Jobs USA.
September 30, 2016
The Save Jobs appealed the District Court's decision to the U.S. Court of Appeals at the District of Columbia.
Trump Administration asked 60 days extension in the proceedings to “allow incoming leadership personnel adequate time to consider the issues."
April 3, 2017
The Department of Justice asked for a second pause of 180 days “to permit the Department [of Justice] to re-consider the H-4 Rule and whether the issuance of a notice of proposed rulemaking relating to it [would be] appropriate.”
April 21, 2017
130 BiPartisan House Members sent a letter to DHS Secretary to not to remove the H4 EAD Rule.
September 27, 2017
DHS required additional time to assess the H-4 Rule in light of the Executive Order 13,788, Buy American and Hire American Executive Order. Plans to Publish the Rule in 3 months.
December 14, 2017
Dec 14, 2017 – Notice to Propose Rule to Remove H4 EAD
December 22, 2017
Dec 22, 2017 – DHS asked for abeyance (no hearing on this case) until July 2018. It’s an indication that H4 EAD could be removed by then.
Feb 21, 2018
Feb 21, 2018 – Court has ordered DHS to provide progress on Rule Making to Revoke H4 EAD every 90 days.
March 1, 2018
Proposed Rule to Terminate H-4 EAD Program Delayed Until June or Later.
August 20, 2018
DHS filed another status report in the case, stating that “[a]s represented to the Court in prior status reports, DHS’s intention to proceed with publication of an NPRM [a new rule] concerning the H-4 visa rule at issue in this case remains unchanged.”
October 19, 2018
USCIS recently indicated in the Fall Unified Agenda that, a Notice of Proposed Rulemaking in November 2018 (see RIN 1615-AC15) on this regulation.
When DHS Proposes the Rule, it will be Stage 3 in the Map Below.
Current Day - 2018
Removing or Revoking H4 EAD is Not Yet Proposed. Expected to be Proposed in November 2018.
Proposed Rule does not automatically invalidate H4 EAD cards.
Until the Final rule with Effective Date is Published, H4 Employment Authorization Document would remain valid.
H4 EAD Rulemaking Process Flowchart
In order to understand the Removal of H4 EAD Rule Making Process, take a look at the timeline when H4 EAD Rule was implemented back in 2015.
- May 26, 2015 – UCSIS will accept applications for ED for H-4 Visa
- Feb 2015 – USCIS Submitted Final rule for White House OMB approval. Effective Date will be May 26, 2015
- July 2014 – Public Comment Period is Over. Next, USCIS will review comment.
- May 2014 – DHS announces the criteria for qualified H4 Visa for EAD. Public Commenting Begins.
- March 2013 – Review Extended by OMB.
- February 2012 – This Rule was proposed in Feb of 2012.
The way things are looking right now, H4 EAD rule could be revoked in 2019. See below for possible timeline to implement the rule to remove H4 EAD.
Perhaps that's the reasons, I'm seeing a drastic increase in H4 to F1 conversion this year compared to anytime in the past.
There's wide support for keeping the H4 EAD intact from Companies and US Congress Representatives.
Rule to Remove H4 EAD - Nest Steps and Timeline
OMB Reviews the Proposed Rule from DHS. There is no minimum time limit and the review can take 30 days. In some cases, it can even go beyond 30 days.
Publish Proposed Rule
After OMB completes the Review, DHS would then Publish the Proposed Rule for Comments. This can take 1 to 2 weeks after the OMB Review.
Public Commenting can be open for 30 to 180 days depending on the complexity of the Proposed Rule to Remove H4 Work Authorization.
Review Public Comments
After the public commenting period, DHS would review the comments and prepare a reply for the submitted comments. If there are a large number of comments, it could take a bit longer for DHS to review and respond to them.
Final Rule for OMB Review
DHS would then submit the Final Rule with answers to the Public Comments to OMB for review. This rule could look the same as Proposed Rule, or have minor changes to drastic changes. If there are Major changes, OMB could ask them to open up Public Commenting. If it looks good, Rule would be all set for Publishing in the Federal Register.
Removing H4 EAD Rule is set as economically significant and Effective Date for economically significant rule should be 60 days out from the date Final rule is published.
During this period Congress could review the rule to approve or deny the implementation. And it requires President's Sign.
USCIS - Revoke or Revise H4 EAD?
If you read the language of the news from USCIS, during Summer fo 2017, it looked the H4-EAD Rule might be revised. Possibly to be more restrictive.
But the Notice to Publish a Proposed Rule has the following 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.
That sounds like USCUS would completely Remove H4 EAD Work Authorization. Again, this is speculation at this point. And DHS would be also aware of possible Court Challenges from companies, where there is a cost to hire new employees and train them.
When DACA program was repealed, the work authorization was valid until expiration.
If I were to guess what could happen, then H4 EAD would be valid until the current validity period. I'm speculating here. We don't know the contents of the H4 EAD Rule yet!
H4 EAD is still valid. If you are eligible to apply for H4 EAD as the first-time applicant or H4 EAD Extension, then go ahead and submit your application when the 6-month window opens to apply for H-1B Visa Extension.
It's well documented that life of H4 Visa spouses is difficult, depressing and sad.
For the first time H4 EAD applicants, especially if you have a few gaps in your career, it may be a good idea to study. And I discussed challenges of finding a job on H4 EAD in the following article
And, if your spouse just got I-140 approved, then apply for H4 EAD as soon as possible. On an average, it taking about 1200 days for USCIS to process the EAD application.
Implementing H4 EAD required a lot of advocacy efforts. With several decades waiting time for Green Card via EB2, EB3, life will be really hard if H4 EAD is Revoked. The pain of not having the H4 EAD will be felt deeply only be you and your family. Words can't explain what it means when your career, opportunity, future is taken away from you. Let's hope the advocacy efforts can stop revoking H4 EAD by rule making stalls or drops.
H4 EAD Statistics
USCIS published data on the number of Employment Work Authorization issued for H4 EAD.
- H-4 Employment Rule: Federal Register Notice [Published: February 25, 2015), effective May 26, 2015.
- USCIS Employment Authorization for Certain H-4 Dependent Spouses Webpage
- USCIS list of Frequently Asked Questions that USCIS has compiled since it announced the H-4 rule.