The Department of Homeland Security has informed a federal appeals court that a proposed regulation to rescind the H-4 employment authorization program is not likely to be published before Spring 2020 and indicates that even this estimate is “aspirational.”
The disclosure came in a letter to the U.S. Court of Appeals for the D.C. Circuit in Save Jobs v. DHS, the lawsuit challenging the H-4 EAD program. The court is considering whether to postpone oral arguments in the case indefinitely.
What this means for the H-4 EAD program
DHS’s estimated timeline indicates that a final regulation rescinding the H-4 work program is not likely to occur in the near term. If the proposal is published, the public would have an opportunity to provide feedback during a public comment period, which is typically 30 to 60 days long. After the public comment period, DHS would review the feedback and craft a final regulation, which would have to undergo further OMB review before publication. There is no set timeframe for this process, but it typically takes several months at least.
What H-4 nonimmigrants should do now
Eligible H-4 spouses can continue to seek new or renewed work authorization under current rules. USCIS continues to accept and adjudicate these filings. H-4 spouses should file as soon as they are eligible. Holders of current H-4 EADs can file a renewal application up to six months before the expiration of their current document. An H-4 EAD application can also be filed at the same time as the H-1B principal’s application to extend status beyond the sixth year. Eligible spouses in another immigration category can submit an EAD application along with an application to change status to H-4.