The DOJ and the DHS have made clear on numerous occasions that they intend to rescind employment authorization documents (EADs) for H-4 visa status holders and it appears that rescission may be just around the corner. Family members of an H-1B worker are admitted in the H-4 category.

According to DHS pleadings in the U.S. Court of Appeals for the D.C. Circuit, a Notice of Proposed Rulemaking (NPRM) will be issued by the end of February.

H-4 EADs have been the subject of litigation since the regulation creating them was issued in 2015 during the Obama Administration. Save Jobs USA, a group of high-tech workers, had filed suit in the federal district court in D.C., arguing that the DHS lacked the authority to issue the H-4 EAD regulation. Save Jobs USA lost in the district court, but it appealed to the federal appeals court just before President Donald Trump was inaugurated.

It then fell to the Trump DOJ to defend the regulation. Instead of mounting a defense, the DOJ asked for a 60-day pause in the proceedings to “allow incoming leadership personnel adequate time to consider the issues.” That pause was to conclude on April 3, 2017.

The DOJ asked for a second pause of 180 days “to permit the Department [of Justice] to re-consider the H-4 Rule and whether the issuance of a notice of proposed rulemaking relating to it [would be] appropriate.” The Court granted another pause until September 27, 2017.

On September 27, 2017, the DOJ requested yet another delay because the “DHS required additional time to assess the H-4 Rule in light of the Executive Order 13,788, Buy American and Hire American . . . .”  That request was granted until January 2, 2018.

Now, more than a year after the appeal was filed, the DOJ has requested a fourth delay to give the DHS more time to begin the NPRM to rescind the rule. The DOJ argued that, because DHS “has announced its intention to propose rescission of the H-4 Rule in its current form and remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization,” the issues raised by the litigation will become moot. In a Per Curiam Order, the Court granted the request, stating that DHS “represents that it plans to issue a notice of proposed rulemaking in February 2018 . . ..”

While the Administration’s intention to eliminate at least some H-4 EADs seems clear, how it proposes to wind down the program is not. Employers should consider back-up plans for employees on H-4 EADs such as filing H-1B cap-subject petitions in appropriate situations. For further guidance, please contact your Jackson Lewis attorney. We will continue to closely monitor this situation.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.