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Allen and Hodgman | Update: DHS files regulation to cancel H-4 EAD (but H-4 EAD still available for now!)

Update: DHS files regulation to cancel H-4 EAD (but H-4 EAD still available for now!)

On February 20, 2019, the Department of Homeland Security (DHS) filed a proposed regulation with the Office of Management and Budget (OMB) for review. The regulation is titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” The regulation itself will not be published until the review by OMB is complete. However, the title of the Regulation leaves no doubt that the Trump Administration has taken an important next step to eliminate the H-4 EAD. It usually takes about 60 days for OMB to complete its review. At that point the proposed regulation will be published in the Federal Register for comment by the public. The comment period is generally 60 days as well. DHS will then publish a final rule. So there is at least four months left before any rule could go into effect.

The H-4 EAD is an open work permit that is available to dependent spouses of H-1B professional workers. Spouses can apply for the EAD if the principal H-1B worker has an approved I-140 Immigrant Worker Petition, or has filed a labor certification at least one year previously. The EAD is valid for the same length of time as the spouse’s current H-1B petition.

Since the regulation has not been published, it is unknown whether the regulation proposes to cancel existing EADs, or only to prohibit filing of future applications. We think it is unlikely that the regulation would cancel existing EADs. The Executive Order cancelling DACA, for instance, did not cancel existing DACA approvals, and even permitted some renewals. For this reason we strongly urge persons who are eligible for an H-4 EAD to apply for one now. Persons whose H-4 EADs will expire this year should apply for H-1B/H-4 extensions as soon as possible. Your employer can apply for an H-1B extension six months before your current H-1B expires.

Now more than ever, we urge H-1B families in the United States to consider Canadian alternatives. Under the Canadian system, all dependent spouses of persons with temporary work permits for professional level jobs are entitled to open work permits. The spouses of students at Canadian universities are also entitled to work permits. Under Canada’s Express Entry immigration system, qualified applicants and their spouses can achieve permanent residence in as little as six months.

As Canadian and U.S. immigration lawyers, we have a unique perspective on North American immigration as a whole. Contact as now to discuss solving your U.S. immigration problems … or to choose the Canadian alternative!