A proposed regulation that is expected to end work authorization eligibility for H-4 spouses of H-1B workers is close to being published. The proposal was sent to the Office of Management and Budget (OMB) on Wednesday, the last step before the Department of Homeland Security publishes a proposed rule.

Key points:

  • The text of the proposed regulation is not available yet, but is expected to be published in the Federal Register following review by OMB.
  • After the proposed rule is published, a public comment period is expected to open for 30 or 60 days. The agency is required to review all comments before issuing a final regulation, which will set the effective date of the rule.

Background: The H-4 Employment Authorization Document (EAD) regulation currently allows certain H-4 spouses of H-1B workers to apply for employment authorization in the U.S., but rescission of the Obama-era rule has been on the DHS agenda since late 2017. A lawsuit challenging the Obama rule, Save Jobs v. DHS, was put on hold for months as DHS told the courts that it was in the process of rescinding the rule. In January, however, a federal appeals court removed the hold and set a briefing schedule requiring DHS to submit arguments by March 18, and the agency has now taken steps toward issuing the rescission rule in light of that deadline.

BAL Analysis: The current H-4 regulation remains in effect today, meaning eligible H-4 visa holders may continue to apply for new and renewal EAD cards. The OMB review indicates that the rescission rule is in progress and DHS is working toward issuing a proposed regulation. Following publication of the proposed rule, members of the public will have an opportunity to submit comments to the government, and it typically takes several months for the agency to issue a final rule. The agency has not indicated whether the rule will allow a transition period for current H-4 EAD holders to continue working for a designated period. BAL is closely following the H-4 rescission rule and will report any developments as the rule progresses.

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

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