The Department of Homeland Security is expected to publish a proposed rule this month seeking to rescind the Obama-era H-4 regulation that currently allows spouses of certain H-1B workers to apply for employment authorization documents, or EADs.

The agency has consistently indicated its intention to rescind the regulation and has listed it among its regulatory agenda priorities since last year. Most recently, DHS stated in a federal appeals court filing on May 22 that the proposed rescission rule is undergoing final DHS clearance and will be sent to the Office of Management and Budget (OMB) for review.

Key points:

  • The H-4 regulation remains in place for now, but DHS is likely to propose a rule to revoke it this month.
  • The process of issuing a final rule will take approximately three to four months. After clearing the OMB, the proposed rule will be published and open for a public comment period of 30 or 60 days. The agency will then review the comments before publishing a final rule.
  • DHS has not given any indication of whether the rule will provide for a transition period allowing current H-4 EAD holders to renew their EADs for a limited time.

Background: The H-4 regulation was promulgated in 2015 and allows dependent spouses of H-1B workers who are at certain stages of the green card application process to apply for an EAD. The regulation has allowed some 71,000 H-4 spouses to obtain work authorization.

Under President Trump’s “Buy American, Hire American” Executive Order, DHS intended to rescind the regulation in January, but later indicated that it needed to delay the rescission rule in order to revise its economic analysis of the impact. The agency now expects to publish its proposed rule this month.

BAL Analysis: Employers and H-4 EAD beneficiaries should be aware that a proposed rule is likely to be published in the coming weeks, which will initiate a notice and comment period. The H-4 regulation remains in place until a final rule is published and becomes effective, which usually takes at least three months from publication of the proposed rule. Until a rule is published, it will not be clear whether current beneficiaries will be afforded a transition period. Employers are encouraged to work with BAL to plan for the changes and discuss alternative planning for H-4 spouses, as well as to participate in the public comment period.

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

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