DHS to begin process to terminate H-4 spousal work authorization in February

IMPACT – HIGH

The Department of Homeland Security notified a federal court Friday that it will issue a proposed regulation in February to rescind the H-4 spousal work authorization regulation. DHS did not reveal any information about how it will terminate the regulation, including whether there will be a grace period for H-4 Employment Authorization Document (EAD) holders to renew their work authorization. The final regulation is not expected before the summer of 2018.

Where things stand:

• DHS filed a Motion to Hold Proceedings in Abeyance in the U.S. Court of Appeals for the D.C. Circuit. The underlying case is a challenge to the H-4 EAD regulation brought by Save Jobs USA, which has asked the court to proceed with litigation and not wait for DHS rulemaking.
• DHS confirmed in the filing that it will issue a proposed regulation in February that will rescind the authorization of H-4 spouses to work. If the abeyance is granted, DHS would update the court no later than July 1, 2018 on the status of the rulemaking.
• The court now must decide whether it will proceed to hear the merits of the case—to determine whether the H-4 EAD regulation is lawful—or whether it will hold the litigation in abeyance. There is no set timeline for the court to rule on the motions.
• Even if the court does not grant the abeyance, DHS is likely to continue the process of rescinding the H-4 EAD rule, which will take approximately five months.

BAL Analysis: Though it is impossible to predict with certainty how a court will rule, BAL anticipates that the appeals court will hold the litigation in abeyance while DHS proceeds with the rulemaking. DHS has previously been granted three abeyances in the case to give the Trump administration time to consider whether to rescind the rule.

Even if the court decides to hear the merits of the case, BAL expects that DHS will continue its rulemaking process. A likely timeline is as follows: In February, DHS will publish a proposed rule with a request for public comments that is normally open for 30 days. DHS will need to review those comments, finalize the regulation, and allow for a 30-day delayed effective date for the final regulation. The earliest DHS is likely to publish the final regulation will be the summer of 2018. That timeline is consistent with the request by DHS to update the court by July 1, 2018, on the status of the rulemaking.

DHS did not reveal in the court filing any information about how it will rescind the regulation. Though BAL expects DHS will allow current EADs to remain valid through their duration, we do not yet know for certain whether DHS will provide a grace period during which time H-4 EAD holders can renew their work authorization. BAL is following developments on the H-4 EAD regulation and will report any updated information as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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