DHS to delay rule to repeal H-4 regulation until June

The Department of Homeland Security has indicated that it will delay a proposed rule to rescind the H-4 regulation until June, according to a status report the agency gave in a court filing Wednesday. The H-4 regulation currently allows spouses of certain H-1B workers in the U.S. to apply for employment authorization documents, or EADs.

Key points:

• In the status update, DHS indicated that it had planned to issue a proposed rule in February that would remove H-4 spouses from the category of individuals who are eligible for employment authorization, but that U.S. Citizenship and Immigration Services reviewed the draft rule in January and determined that it required “significant revisions,” including a new economic analysis that will take several weeks to complete.
• DHS now anticipates that it will submit the proposed rule in June.
• The agency did not provide any information about how it planned to rescind the H-4 regulation, including whether it will allow a grace period during which current H-4 EAD holders could renew their work authorization.

Background: The update was filed in the context of a lawsuit brought by a group of tech workers who are challenging the Obama-era H-4 regulation. On Feb. 21, the court granted DHS’s request to hold the lawsuit in an abeyance based on the agency’s assertion that it would begin the rulemaking process to rescind the H-4 regulation in February.

BAL Analysis: Eligible H-4 spouses will continue to be able to apply for EADs until a final regulation rescinding the current rule takes effect. The rulemaking process takes approximately five months from proposed rule to final regulation, so the earliest date that DHS would issue a final regulation would likely be November.

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

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