H-4 EAD update: Rescission rule expected in spring

The Department of Homeland Security submitted a letter today to a federal court, indicating that it hopes to propose a rule rescinding the H-4 employment authorization rule by the spring of 2020.

Key points:

• The Trump administration is working toward rescinding the 2016 H-4 EAD rule and removing H-4 spouses from eligibility for employment authorization. The proposal has been under review by the Office of Management and Budget since February.
• In ongoing litigation over the rule, DHS submitted a letter to the court indicating that the “earliest possible” date it expects to publish a proposed rescission rule is spring 2020.

Background: The lawsuit challenges the 2016 rule, and DHS has repeatedly argued for the case to be delayed as it works to rescind that rule, on grounds that the rescission would render the case moot. After putting the case on hold for over a year, the court set a trial schedule earlier this year with oral arguments set for Sept. 27. Last week, DHS confirmed to the court that it was still working on the rescission rule, and in the latest filing, DHS called the spring 2020 target date “aspirational,” but argued for September oral arguments to be removed from the schedule and postponed indefinitely.

BAL Analysis: The H-4 EAD rule remains in place at this time, and eligible H-4 spouses may continue to apply for and receive both initial and renewal Employment Authorization Documents (EADs). The letter provides an updated time frame from DHS regarding its plan to rescind the rule. BAL is closely following the progress of the H-4 rescission rule and will provide further updates as they become 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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