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DHS will announce proposed regulation to cancel H-4 EAD in March 2020

In the Fall 2019 Regulatory Agenda, USCIS stated it now intends to announce a proposed rule to eliminate the H-4 EAD in March 2020. This proposed rule would not go into effect immediately. It would be subject to notice and comment as well as further review by the Office of Management and Budget. This would likely delay any such rule going into effect until late next year.

At the same time, a lawsuit challenging the H-4 EAD has been allowed to go forward in the U.S. District Court for the District of Columbia. This suit has been brought by a group of US IT workers who allege the H-4 EAD limits the employment opportunities of U.S. workers. There has been no ruling by the Court in this lawsuit.

It is important to stress that the H-4 EAD is still legal and is still available!

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. 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  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!