The adage that “everything in life comes full circle” could very well predict the future of work authorization in the U.S. for the dependent spouses of individuals who hold valid H-1B visas. While dependent spouses on H-4 Visas are currently authorized to work in the USA, there has been much speculation that President Trump may amend or revoke the Employment Authorization Document (EAD) for dependent spouses in the US further to his “Buy American, Hire American” Executive Order. A retrospective view of the rulings by the United States Citizenship and Immigration Services (USCIS), which are guided by the Presidential Administration, demonstrates the potential for the “return from whence it came”.
At its inception, dependent spouses on the H-4 visa were not granted work authorization in the USA but then in May 2015, the USCIS reversed its decision and ruled in favor of issuing an Employment Authorization Document (EAD) for H-4 Dependent Spouses IF their sponsoring husband or sponsoring wife with the H-1B could present either an approved I-140 petition for a Green Card/Permanent Residency or an H-1B approved for extension beyond the allowable six (6) years which became permissible under AC-21.
Soon after the H-4 Visa EAD Rule was approved, thousands of dependent spouses were granted permission to work in the USA with the H-4 visa EAD. Some US workers were not pleased with the ruling and filed a lawsuit in Federal Court against the Department of Homeland Security (DHS) to prevent its enactment. Save Jobs USA, the plaintiff in the Lawsuit comprised mostly of Information Technology workers, claimed that jobs in the U.S. were being awarded to foreign nationals rather than US workers and that as a result, their livelihood was threatened. Furthermore, the plaintiff claimed that the DHS was not an agency authorized to grant EADs to H-4 visa holders.
Trouble in Paradise……You Can’t Make Everyone Happy:
After May 2015, spouses on the H-4 Visa with an EAD were happy to be able to work and earn an income in the USA rather than “sitting out” their own professional lives while their significant-other was able to provide for the family and also advance in his/her career. The flip side is that some US workers, as well as the current Administration (under Trump), grew dissatisfied with the current state of affairs, and the ensuing legal actions took place.
The Legal Tactic of Requesting Delays from the Court:
During February 2017 and April 2017, the Trump Administration filed a series of Motions to request 60 days and 180 more days, respectively, in which to suspend a decision in the Lawsuit. Conceivably, this granted extra time in which the Administration could consider the potential impact of approving or revoking the H-4 EAD.
By June 2017, the Federal Appeals Court halted the legal process of filing Motions which permitted a series of delays and subsequently demanded that the plaintiff, SAVE Jobs USA, and the defendant, DHS, file Motions by September 27, 2017 to outline how each wished to proceed.
The September 27, 2017 deadline arrived. SAVE Jobs USA filed in a timely manner, but the DHS did not. Instead, the DHS, under the Trump Administration, filed a Motion to request the Appeals Court to suspend/ freeze the ongoing legal matter once again.
By mid-November, 2017 the Court denied DHS’ request for an extension and DHS was asked to proceed and file its motion by not later than January 2, 2018.
Reaction by the Media with an Unofficial Report:
In late November, Breitbart News released a statement that DHS drafted a regulation to end the H-4 Visa EAD program. At the time of this writing, it was better to view the Breitbart statement as speculative rather than factual since the DHS has not released an official statement.
DHS Publishes an Official Agenda Item on the H-4 EAD:
On December 14, 2017, DHS published an official statement on “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” in the Regulatory Agenda. The intention is to either amend the original rule published for H-4 EAD Rule in 2015 or to revoke so as to be consistent with the underpinnings in Trump’s “Buy American, Hire American” Executive Order. Furthermore, the DHS statement identifies regulations of the Immigration and Nationality Act which grant authority to the DHS Secretary to approve of such an agenda.
Take the Optimistic Point of View:
While the official statement by DHS provides limited details regarding the future ability of dependent spouses to work under H-4 EADs, it did not institute an outright revocation of formerly approved H-4 EADs nor make an early determination to place severe restrictions on the work authorization program. An update, however, is expected in February 2018.
Be Proactive and Plan:
We hope the timeline of events specified above provides information about how the Fall 2017 Regulatory Agenda entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” developed over the past year.
While we cannot predict how the Trump Administration will rule ultimately on the proposed H-4 EAD regulatory agenda (or future ones), Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. is able to help you prepare for the potential impact upon either your current immigration status or the potential impact upon the work eligibility of your spouse.
Leaving aside the current state of political affairs, there are many factors such as changes within the family, employer demands, as well as changes in the economic market, which can impact one’s employment and immigration status. As Attorneys specializing in Immigration and Nationality Law, we routinely assist individuals, families, small businesses, as well as Fortune 500 companies with their immigration law needs.
If you have any questions or want to learn more about how the U.S. immigration and nationality laws may impact you, your family, your friends, or your colleagues, please feel free to contact NPZ Law Group, P.C. by sending an email to email@example.com, or by calling us at 201-670-0006 (x107) or by visiting our website at https://www.visaserve.com