H4 EAD Update – DHS releases notification of proposed Rule for Rescinding H-4 EAD
H4 EAD update, perhaps one of the most nerve wracking topic among educated immigrants and their spouses. Earlier, court granted a 6 month delay so DHS and Save Jobs can come up with responses. Save Jobs filed their amendment and DHS filed it on September 27th. The new government (Who is the third plaintiff after last year’s election) requested 180 days to come up with a response to court order.
What is the H4 EAD lawsuit?
Few weeks before H4 EAD visa holders could start working, Save Jobs USA filed a lawsuit seeking to stop the rule. A group of computer workers formerly employed by Southern California Edison formed Save Jobs USA’s plaintiff. They argued instead of a legislature passing H4 EAD, a regulation did. Hence, they argued courts must vacate the rule. The group further alleged they were displaced by H1B workers and face more competition from H4 EAD workers.
What happened then?
The court sided with the then Obama government. It found only a subset of H4 visa holders eligible to obtain EAD. In addition, the court also indicated Save Jobs USA did not establish its argument. Finally, the court stated that a Congress delegated authority set rules regarding employment authorization and DHS was reasonable in using that authority to grant EADs.
The 2016 Election and President Donald Trump
Once Donald Trump became president, Save Jobs again filed an appeal at the US court of appeals at DC circuit. The new government (Enter 3rd plaintiff) requested 60 days to respond. Then, government again requested a 180 day freeze so DHS can reconsider H4 EAD based on the executive order issued by the president. The court granted the stay requested by government. However, directed DHS and Save Jobs to file further motions on how they wish to proceed by September 27, 2017.
Save Jobs filed its motion and requested the court for oral argument to conclude the case. DHS on September 27th ,again requested the court to hold H4 EAD case in abeyance until December 31, 2017. DHS wanted this freeze to review the president’s executive order and assess how to go about with H4 EAD. Which means as of now 2 out of 3 plaintiff’s have responded (DHS and Save jobs). While the new government is yet to.
November 17, 2017 H4 EAD Update
Court denied the 180 days deadline extension requested by the government. And asked the government to file their motion by 2nd January ,2018. The new administration’s stand currently is against immigration and cancelling H4 EAD status. So the government will likely file a response to abolish H4 EAD. However, AILA and other organizations plan to oppose the move. As a result, nothing changes for now. All H-4 EADs remain valid until an actual judgement gets passed. For now the good news is that you can apply for H4 EAD, if eligible. New EADs will continue to be adjudicated by USCIS. Any current motion filed by Government until January 2nd, does NOT impact the current rule in place.
November 22, 2017 – As reported by Breitbart
Breitbart, A news outlet backed by Steve Bannon reported today that Officials at the Department of Homeland have drafted plans to end H4 EAD. A regulation to end the H4 giveaway is “on the table” an agency official told Breitbart News. If published in the federal register, it will be enforced after 60 days but likely will be tangled up in business-funded lawsuits. Immigration lawyers (AILA) and business groups are already are promising to block the regulation with lawsuits. We are tracking this story closely and will keep you all posted.
Dec 14th 2017 H4 EAD update
DHS releases notification of proposed Rule for Rescinding H-4 EAD Rule in OMB Agenda. However, no rule has been posted to the Federal Register as of today. We are also tracking the court records to see if any notification is updated on the ongoing case
Source: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=1615-AC15 (site seems to be down. But the picture above is the page’s link)
The spouses of highly skilled foreign workers would no longer be able to work legally in the U.S. under a regulatory change proposed by the Trump administration on Thursday.The plan, laid out in a notice that it intends to propose a rule in 2018, would undo a program by the Obama administration that benefits foreign couples where one person is working in the U.S. on an H-1B visa. The regulation is being challenged in court as an overstepping of executive authority, and the Trump administration appears to be signaling that it intends to overturn it rather than defend it.
The notice published on behalf of the Department of Homeland Security wasn’t specific about its reasoning, saying: “DHS is proposing to remove from its regulations certain H-4 spouses of H-1B non immigrants as a class of aliens eligible for employment authorization,” it said.
Both DHS and SAVE Jobs have filed respective motions.DHS wants to hold the case in abeyance until July 2018. While Save Jobs wants to prevent this abeyance and have oral argument.
DHS argument: DHS filed a motion to hold the lawsuit in suspension. DHS argues that they are in the process of removing H4 EAD. Furthermore, they plan for Notice for proposed rule making (NPRM) in February 2018. DHS argued that having an oral argument currently is of no use since they plan to remove H4 EAD accompanied with regulations. Here is an excerpt from the actual filing.
SAVE Jobs argument : SAVE Jobs argued that DHS never had the authority to implement the H4 EAD. They said that the regulatory process will take years, as the previous H4 EAD rule making took over 2 years from publication in regulatory agenda. And this in turn will impact many of the Americans. Save Jobs also argued that more lawsuits can crop up in the mean time. Hence, they pleaded the court to have an oral argument to pass a final judgement.
Current Status :
Court is yet to give a decision on the arguments filed by both. We will keep you posted. Regardless of the outcome, if the government wants to get rid of the H-4 EAD, it must first go through a 60-day notice and comment period. In addition there is a 30-day period to reconcile those comments. After reconciliation they will publish a final rule with an effective date in the federal register. As you can see, this will take few months. How will the existing EADs be treated is the next question. We still do not have a clear picture on this. However, if we draw from how they handled the DACA cases. An educated guess is that already approved and pending EADs will be honored. But they will accept no new applications. There is no guarantee for such an outcome, this is only an educated guess.
What does the executive order tell DHS?
“In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, the order instructs the “Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security” to, “as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system.”
Consistent with the President’s directive, DHS is still evaluating next steps. Rumors about DHS backing the government this time is floating around. DHS plans to announce its final intentions by the end of the calendar year Dec 31,2017. The new government will file its response on 2nd January, 2018. And a final judgement on H4 EAD follows after that. Keep your fingers crossed!