On February 20, 2019, the Department of Homeland Security submitted a proposed regulation to the Office of Management and Budget, which would have the effect of eliminating employment authorization for H-4 individuals whose H-1B spouses are “in line” for employment-based permanent residency. OMB will review this proposed rule and will issue a notice of proposed rulemaking in the Federal Register, and they will take public comments.
Who is currently allowed to have employment authorization in this category? H-4 is the visa classification given to spouses of H-1B visa status holders. Since 2015, certain H-4 spouses have been given the ability to apply for work authorization in the United States. This is limited to individuals whose spouses have H-1B status under the American Competitiveness in the Twenty-First Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act, or whose spouses are the principal beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140).
Who will be impacted? It is estimated that 90,000 or more individuals currently have employment authorization in this category. If this change is implemented, it will affect not only the economic situation of the impacted families, but also the thousands of employers who rely upon these (frequently highly educated) employees. USCIS has indicated that this rule will be “economically significant,” meaning that it may have an impact of $100,000,000 or more. Because of country-chargeability and the current nature of the backlogs in employment-based categories, the heaviest impact will be on spouses of H-1B visa holders who were born in India.
What is the anticipated timing? Because of the OMB review and period of notice and comment, this process will likely take several months.
What action is recommended? At this time, it is unclear what will happen to currently valid or pending EADs. Affected companies and individuals would be well-served to discuss with an immigration attorney whether it would be prudent to seek to enter the H-1B “lottery” for the upcoming fiscal year. USCIS accepts these cap-subject petitions during the first five business days of April, meaning that cap-subject petitions should be prepared in March.
Employers and individuals should also consider submitting comments once the period of notice and comment is open.
Where can I find further information?
Proposed Rule Announcement
FAQs on Rulemaking from the OMB
By Jennifer West