Terminating the H4 EAD?

Terminating the H4 EAD?

 
In February 2015, the Obama administration promulgated a federal regulation permitting certain spouses of foreign employees in H-1B visa status to seek authorization to work in the U.S.

Ordinarily, a spouse or child of a foreign employee in H-1B status is given a ‘derivative’ status known as ‘H-4’ status.  Under most circumstances, someone in H-4 status is not allowed to work in the U.S.   However, under this program, a spouse who is in H-4 status may apply for an Employment Authorization Document – (an ‘EAD’ or ‘work permit’) – if the H-1B spouse is also the beneficiary of an approved I-140 Petition for Alien Worker. 

The I-140 Petition For Alien Worker is the first step in the ‘green card’ process which shows that the foreign employee is eligible for a ‘green card’.  Because of the backlog of visa numbers for natives of some countries such as China and India, some foreign employees may have to wait years before they can take the second step of actually applying for a ‘green card’.  The executive order gave relief to the spouses of these foreign employees who successfully completed the first step while waiting for the second step.  It is typical for a foreign employee who qualifies for an H-1B visa to have a spouse who is also highly educated or skilled, so this program allowed spouses to put their education and skills to good use while waiting for a ‘green card’.

It was widely expected that when Donald Trump took office, he would attempt to eliminate this program.  Recent reports indicate that a proposed new federal regulation has been drafted that would do just that.

An added dimension to this story is the existence of a lawsuit styled Save Jobs USA v. U.S. Dept. of Homeland Security filed in April 2015 and presently at the D.C. Court of Appeals.  ‘Save Jobs USA’ is a consortium of technology workers who argue that the manner in which the H-4 EAD program was created was improper.  Proceedings in this case have been held in abeyance until December 31, 2017 to give time to the U.S. Dept. of Homeland Security (under the new Trump administration) to assess the case.  A ruling may be coming as early as January, so this may be a factor in how/when/if the Trump Administration addresses this program.

In the meantime, foreign employees and their family members who may be eligible for the program should examine whether they are in a position to benefit from these regulations…sooner rather than later.

 

Your HS&D Immigration Team