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Allen and Hodgman | Still no regulation to repeal H-4 EAD, so Court action resumes

Still no regulation to repeal H-4 EAD, so Court action resumes

The Fall regulatory Agenda of the Department of Homeland Security stated that the proposed rule to eliminate the H-4 EAD would be published in November 2018. However, as of the date of this post – December 20 2018 – there is still no regulation published. DHS previously had announced the new regulation would be published in February 2018. This was then pushed back to June 2018 and then to November. This would be a proposed rule to eliminate the H-4 EAD. It will not end the H-4 EAD immediately. There will be a period allowed for public notice and comment, and then DHS will publish a final rule.

A private lawsuit to eliminate the H-4 EAD was filed in federal court in 2015 while Barack Obama was president. The Obama government at the time defended the H-4 EAD regulation. The federal court upheld the H-4 EAD. The plaintiffs appealed this decision to the Court of Appeals for the District of Columbia. The Trump administration then asked the Court to put the case on hold because of the new regulation they planned to publish. The case stayed on hold until December 17, 2018, when the Court ordered that the appeal will resume. It is not clear whether the Trump government will continue to defend the regulation, or agree with the plaintiffs that the H-4 EAD should be abolished.

The H-4 EAD remains available to the spouses of H-1B workers who have advanced to a specific stage of the green card process. You can apply for the H-4 EAD if your spouse has an approved I-140, or has filed a labor certification application at least one year ago. In many cases H-4 spouses are themselves highly educated and talented persons who are making important contributions to the nation’s economy and well-being. We urge any eligible persons to apply now while the H-4 EAD is still available. Even if new H-4 EADs are eliminated, it is likely existing EADs will remain valid.

The elimination of the H-4 EAD will have a disproportionate impact on H-4 spouses from India and China, due to the extremely long waiting periods for employment-based green cards in the EB-2 and EB-3 categories. Our law firm practices both U.S. and Canadian immigration. Canada currently offers permanent immigration to qualified skilled workers in as little as six months through the Express Entry process. Moreover, if you are the spouse of a skilled worker with a work permit, you are automatically entitled to a work permit yourself. If you are currently holding an H-4 EAD, contact us now by phone or email to explore your Canadian options.