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
