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DHS plans to propose rule to rescind work authorization for H-4 spouses of H-1B visa holders

  1. Original Date Announced

    December 14, 2017

    DHS published a notice in the Unified Agenda of Regulatory Actions noting that it intends to rescind a rule making certain spouses of H-1B visa holders, who hold H-4 visas, eligible for work authorization. [ID #492]

    RIN: 1615-AC15: Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization
  2. Subsequent Trump and Court Action(s)

    • November 1, 2018

      Removing H­4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

      DHS once again published in the Unified Agenda its intention to rescind the rule providing for work authorization for certain H-4 nonimmigrants.

      View Document
    • August 26, 2020

      Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization

      The Unified Agenda published on August 26, 2020, noted that DHS will publish a notice of proposed rulemaking (NPRM) in September 2020 modifying the final rule published by DHS in 2015 that extended eligibility for employment authorization to certain H– 4 dependent spouses of H–1B. The new proposed rule will rescind the earlier 2015 rule, making this class of aliens ineligible for employment authorization.

      View Document
    • January 21, 2023

      Edakunni v. Mayorkas Settlement

      In a legal settlement in Edakunni v. Mayorkas, the Department of Homeland Security agreed that USCIS would bring back the process by which it adjudicated H-1B and L-1 visas before the Trump administration. Under the terms of the settlement, if spouses and dependents of H-1B and L-1 visa holders file their Application to Change or Extend their Status (H-4 or L-2) and Employment applications for work authorization (I-765s) at the same time as the underlying H-1B or L-1 petition, USCIS will bundle the applications and adjudicate them together, if they are properly filed.

      This settlement is in line with the Biden administration's decision to withdraw in its entirety the Trump-administration proposed rule, "Removing H-4 Dependent Spouses From the Class of Aliens Eligible for Employment Authorization."

      View Document
  3.  
  4. Biden Administration Action: Revoked/Replaced

    January 25, 2021

    H-4 EAD rule withdrawn from OIRA

    This Biden administration policy withdraws in its entirety the Trump-era proposed policy identified in this entry.

    On January 25, 2021, the Biden administration withdrew the Trump-era proposed regulation, Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” (commonly known as the “H-4 EAD Rescission Regulation”) from review at the Office of Information and Regulatory Affairs (OIRA), which is an office within the Office of Management and Budget (OMB) tasked with the review of Executive Branch regulations. The withdrawal of this proposed regulation was in response to a regulatory freeze memo issued by the Biden administration on January 20, 2021, freezing all rulemakings pending review.

    View Document

Current Status

Not in effect

Most Recent Action

January 25, 2021 Action: Revoked/Replaced H-4 EAD rule withdrawn from OIRA
January 25, 2021
Acted on by Biden Administration

Original Trump Policy Status

Trump Administration Action: Rule
Agencies Affected: USCIS

Pre Trump-Era Policies

  • February 25, 2015

    The 2017 DHS notice will rescind a final rule published by DHS on February 25, 2015 that extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who were seeking employment-based lawful permanent resident (LPR) status. In other words, this rule allowed certain spouses of H-1B holders, waiting for green cards, to apply for work authorization in the U.S.

    DHS 2015 Final Rule
  • August 2, 2024

    On August 2, 2024, the U.S. Court of Appeals for the District of Columbia affirmed a lower court decision upholding the validity of DHS's 2015 rule allowing certain H-4 visa holders (the spouses of H-1B visa holders) to work in the United States.

    Save Jobs USA v. DHS

Commentary

  • Law360: DHS Preps Proposal To End Work Authorization For Spouses

    The media reports that DHS has sent a proposed regulation to OMB to rescind work authorization for certain H-4 nonimmigrants.

    Go to article

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