U.S. Citizenship and Immigration Services (USCIS) will continue issuing work permits to eligible H-4 visa holders at least through next spring, according to the Department of Homeland Security. DHS indicated that further delays could occur, describing the spring timeframe as “aspirational.”
DHS made the revelation last week in a letter dated Sept. 16, 2019, to the U.S. Court of Appeals for the District of Columbia Circuit. The letter stems from a lawsuit filed by Save Jobs USA in 2015. The Save Jobs lawsuit, which is currently on appeal, seeks to end the Obama-era H-4 work authorization program, which allows the spouses of H-1B visa holders awaiting green cards to apply for a work permit. Save Jobs USA is a group whose members are former tech workers displaced by H-1B professionals.
For the past two years, the Trump administration has threatened to end work permits for H-4 visa holders. Last February, DHS and its subagency, USCIS, submitted a proposal to rescind the H-4 EAD (Employment Authorization Document) program to the Office of Management and Budget (OMB) for review. Doing so is the first step in the process of rescinding a rule.
Next Steps
OMB typically takes only a few months to review proposed rules. It remains unclear exactly what is holding up the proposal to end H-4 work authorization. According to the DHS, the proposal “is currently undergoing the interagency process” required under the regulations.
DHS has reportedly had several meetings with interested parties since February. Public response and efforts to preserve H-4 visa holders’ ability to work have popped up since the Trump administration first announced its intention to end the program.
Consideration of the fiscal impact of eliminating the H-4 EAD program could partially account for the delay. According to a recent study, about 75% of the 91,000 H-4 workers with work authorization are currently employed. The study estimated that eliminating the H-4 EAD program would result in a loss of more than $2.4 billion annually in federal, state, and local tax revenue.
DHS will publish the proposal in the Federal Register, which it expects will be in spring 2020 at the earliest. The public will have at least 30 days to comment.
DHS could make revisions to the rule based on public input. Afterward, DHS would publish the final rule in the Federal Register with an effective date.
We urge individuals and employers to comment once the DHS publishes its proposal in the Federal Register to make DHS aware of the importance of the program in attracting and retaining international talent. We will keep you posted on developments and when the comment period is open.
Processing Slowdown
While USCIS will continue to issue and renew work permits to eligible H-4 visa holders for at least half a year, USCIS is taking longer to process those applications.
A lawsuit filed in June contends USCIS is unlawfully slowing down processing H-4 and EAD applications for four individuals who are awaiting decisions. The lawsuit—known as a Writ of Mandamus—seeks to compel USCIS to make a decision. The lawsuit states that what used to be a quick process—usually 15 days with premium processing—can now take more than eight months.
Previously, USCIS approved H-4 and EAD applications simultaneously with a spouse’s H-1B visa application. In March, however, USCIS began requiring H-4 extensions to attend a biometrics appointment.
If you hold an H-4 visa with a work permit, you should find an alternative as soon as possible. Reach out to us if we can help you explore options that will allow you to continue working. The Alcorn Immigration Law team has successfully helped H-4 visa holders with employment authorization and their employers find alternative options.
