Proposed Rule to Eliminate H-4 Employment Authorization Program Submitted by Trump Administration

by David Tuteur

Proposed Rule to Eliminate H-4 Employment Authorization Program Submitted by Trump Administration

by David Tuteur

by David Tuteur

On Wednesday, the Trump administration’s proposed rule for eliminating the H-4 EAD was submitted to the Office of Management and Budget (OMB) for review.  The administration had previously published an agenda item in December of 2017 titled Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization, indicating their intent to remove the current H-4 employment authorization document (EAD) rule that has been in place since 2015.

The Obama administration created the H-4 EAD program to allow the spouses of certain H-1B skilled workers to be employed while in the U.S.  The H-4 EAD has been particularly important for families that are awaiting approval for permanent residency.  Without the H-4 EAD, these dependent spouses cannot work in the U.S. until they receive green cards, a process which can often take many years, especially for immigrants from countries like India and China that send a lot of high-skilled talent to the U.S.  Since the rule went into effect, more than 90,000 spouses have been approved for work permits.  More than 90 percent of those who would be affected by the removal of the program are women.

Once the OMB reviews the proposed rule, it will be published in the Federal Register.   Upon publishing, a comment period occurs after which the administration must review the comments and make any necessary revisions before the rule is finalized.  Litigation could potentially delay the rule for months or years longer.  The proposed rule has not escaped the attention of Congress where a bill was introduced in the House of Representatives called the “H-4 Employment Protection Act of 2018” (H.R.7150) which seeks to protect the program.

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