H-4 Visa holders did not have the ability to work, as that was considered a dependent visa with no work authorization. This finally changed on May 26, 2015 when USCIS passed the Employment Authorization for Certain H-4 Dependent Spouses rule.
PDF version of the rule can be downloaded here
Are all H-4 Visa Holders Eligible to Work?
Most of the H-4 Visa holders or Dependent spouses are eligible to work if their H-1B spouse meets one of these two criteria:
- Have an approved I-140, which is the immigration petition for foreign citizens to get Green Card or Permanent Residency in the USA
- Have H1B visa status extended beyond 6 years under AC21 Act, which allows H1B holders seeking Green Card to work and stay in the USA beyond 6 years, if their Green Card or Permanent Residency Application is Pending
Soon after H4- Visa EAD rule was enacted, there was a lawsuit by ‘Save Jobs USA’
Who Was “Save Jobs USA”?
Save Jobs USA comprised of IT workers who claimed they lost their jobs to H-1B workers.
They filed its lawsuit against the Department of Homeland Security (DHS) on April 23, 2015, before the rule was about to go live
The lawsuit was initially dismissed by a Federal district court in September 2016 as “Save Jobs USA” could not defend their lawsuit that H4 EAD holders will impact them
The plaintiffs (‘Save Jobs USA’) filed an appeal to the United States Court of Appeal for the DC Circuit
What Was the Basis of this Lawsuit?
The plaintiffs, Claimed two things:
- The new rule has no protections for US workers and increases the pool of workers looking for jobs
- DHS never had the authority to grant EADs to H-4 visa holders
Since Donald Trump’s administration took office, there has been a lot of speculation and rumors about what will happen to the H-4 visa EAD rule
The battle was arduous and long between courts, advocates, and DHS.
We have Summarized Important Timelines:
February 2, 2017: The Trump administration requested (filed a motion) 60-day abeyance (state of temporary inactivity) to consider the issue and submit their brief (response to consider the case)
April 3, 2017: The administration asked (filed a new motion) for additional 180-day abeyance before they can provide their opinion
The Trump administration will update the court every 60 days on the issue and update court before elapse of 180 days
June 23, 2017: The appeals court granted a stay on Jun 23rd, 2017, and asked both the parties, SAVE Jobs USA and DHS to file further motions on how they would like to proceed with the case by Sep 27, 2017
September 20, 2017: SAVE Jobs USA filed its motion stating that DHS has not taken any action and no publication of rule has been done in Federal register related to the H4 EAD rule and they requested for oral argument to conclude the case
They continued to state that the delay would hurt American workers and new litigation would begin again
September 27, 2017: DHS (Trump administration) filed a motion and requested the appeals court to hold the current H4 EAD case again in abeyance, until December 31,2017
DHS asked for this extension to ensure that DHS and administration align their entire approach to implement Trump Executive Order 13788 on Buy American Hire American and consider how to handle the H4 EAD rule as part of the overall view
December 14th, 2017: DHS published an agenda item “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” in the Fall 2017 Regulatory agenda
The idea was to amend the original rule published for H4 EAD Rule in 2015 and potentially remove it as per the Buy American, Hire American EO by Trump Administration
It also stated that the DHS Secretary has authority to do so as per INA regulations
December 22nd, 2017: Both DHS and SAVE Jobs filed respective motions, one to hold the case in abeyance, other for oral argument and not hold the case in abeyance
DHS Motion Summary
- DHS filed a motion to hold the lawsuit in abeyance (on hold or suspension) as they were in the regulatory process of implementing the “Removal of the H4 EAD” and they plan for Notice for proposed rulemaking (NPRM) in February 2018
- They said that having an oral argument now is of no use when the H4 EAD rule is going to remove with regulation
- As they were in process of removing, they asked for more time
SAVE Jobs Motion Summary
- SAVE Jobs argued that in the first place DHS never had the authority to implement the H4 EAD rule without an act in Congress
- They said that the regulatory process will take years, as the previous H4 EAD rulemaking took over 2 years from publication in regulatory agenda, and it will impact many of the Americans
- Also, this process will lead to more lawsuits around the DHS rule to remove H4 EAD
- The best path is to have an oral argument and have a judgment
February 21st, 2018: The Court ordered the case to be held in abeyance and denied the plea of oral argument by SAVE Jobs
February 28th, 2018: DHS filed a status report with the DC Circuit Court stating that upon review by USCIS, they believed that the draft of the regulation needs to be revised further and they need some more time until June 2018
March 26th, 2018:
- Few of the Members of Congress wrote to USCIS Secretary requesting to reconsider and not revoke the H4 EAD rule
- But, USCIS responded by saying just that, they are working towards the president’s goal of Buy American and Hire American and everyone will get a chance to submit comments during the rule comments period to submit feedback
April 4th, 2018: USCIS Director wrote to Senate outlining various H1B and H4 changes in a letter and plans of USCIS. He also stated his intention to remove H4 EAD and the regulation in planning
May 10th, 2018: H4 EAD Rule removal became part of Spring 2018 agenda and the timeline was updated to June 2018 for rule proposal and comment period
May 16th, 2018: A group of 130 members of congress lead by Rep. Pramila Jayapal and Rep. Mia Love, signed a letter to the DHS asking the Trump administration to reconsider its plans to remove the H4 EAD rule for certain spouses of H-1B
August 20th, 2018: USCIS updated court on their latest status indicating that the final DHS Clearance review and its stance on the issue remains unchanged
September 11th, 2018: SAVE Jobs USA filed a motion in court asking the court to conduct briefing and oral argument at their earliest convenience
September 21st, 2018: DHS stated that it is in the best interest of everyone to hold the case hearing on hold until the process is completed as it would waste court’s and everyone’s time as their intent has not changed and they are making swift progress
November 16th, 2018:
- A new bill called “H4 Employment Protection Act” was introduced in House by Reps. Eshoo and Lofgren
- The idea of the bill is to stop Trump Administration from Revoking the H4 EAD Bill
- It talked about hardships and benefits
Dec 17th, 2018:
US Court of appeals issued two Per Curium Orders:
- To remove the court case of the H4 EAD Lawsuit from abeyance
- Denied the motion filed to expedite the case
- Granted a motion for leave to intervene, making room for the Immigration Voice team to join the case and let them put in their argument in oral hearing
April 2nd, 2019: DHS filed their brief with the court, where they argued that Save Jobs could not establish their argument that it will harm SAVE Jobs Members
September 27th, 2019: Court had an oral argument on time. It lasted about 45 min or so
November 8th, 2019: Court gave Judgment in favor of Save Jobs USA
The H4 EAD Case was sent back to District Court for the next steps
June 29th, 2020: Immigration Voice filed DACA judgment document as a supporting document
What Form of Proof Was Provided by Save Jobs USA?
- Save Jobs provided proofs in the form of affidavits, where two members were replaced by H1B workers
- The judgment states that Save Jobs has offered sufficient evidence to show an actual or imminent increase in competition for its members
- Although, they have not given any proof of harm directly from H4 visa holders with the H4 EAD rule as they filed the lawsuit before the rule went into effect, the affidavits are enough to establish Save Jobs members compete with H1B holders and the H4 EAD rule will increase competition
On Jan 25th, 2021, H4 EAD Removal Rule was withdrawn after Biden Administration took office. The official link can be accessed here
What is the Expected Timeline for this Removal Rule to Take effect?
- Every proposed rule has to go through standard 9 Rule-Making Steps in the US to become law, in our context H4 EAD removal also has to go through the same steps
- It may take up to 10 months or more for H4 EAD to be removed
- The good news is with the current political climate and the new H4 Employee (EAD) Protection Act Bill in House, things can change anytime and slow down a bit
We will keep you posted on the updates about this aforementioned rule-making process.
Meanwhile, if you have any question or comments about this new bill, H-1B registration, eligibility, or have questions about the Green Card procedure in general, you can schedule a consultation with us:
Schedule a call at 469-994-9407 or contact us using the form.