USA, Washington, D.C. February 11, 2019

With the Federal Government back up and running (at least for now), the Department of Homeland Security (DHS) is expected to make publication of its proposed rule, "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization" a top priority for 2019. DHS could publish its long-awaited Notice of Proposed Rule Making - which would provide the full text of the proposed rule for public comment, final government review, and then publication - as early as this month.

Until very recently, a Federal Court lawsuit involving H-4 employment authorization (EAD) had long been held in abeyance pending the final publication of the proposed rule. Refusing to delay litigation any further, the Federal Court has reactivated the case and ordered DHS to file a response to the H-4 EAD lawsuit by February 16, 2019. With this deadline looming, DHS appears to have an added incentive to get the new rule published as soon as possible.

The proposed rule is designed to terminate the Obama-era program which currently permits certain H-4 spouses to apply for employment authorization and work in the U.S. More than 100,000 H-4 visa holders have received employment authorization through the program since its inception in May 2015.

Still unknown are exactly when the elimination of H-4 spouse employment authorization will take effect; whether the ability to apply for employment authorization will end immediately, or be phased out over time; and, whether H-4 spouses who now hold employment authorization will be permitted to work through the expiration of their current approvals. Under the usual rule-making process, and potential litigation challenging the end of the program, there should be a period of at least several months for affected H-4 spouses to make alternative plans - but nothing is certain at this point.

It does, however, appear likely that the end is coming. Possible alternative solutions include employers pursuing independent employment sponsorships on behalf of their H-4 employees, such as: H-1B visas, O-1 visas (for individuals with extraordinary ability in their field); TN classifications (Mexican and Canadian Professionals); E-3 (Australian Professionals), H-1B1 (Professionals from Chile and Singapore); and, employment-based green card sponsorships through the PERM Program.

Another strategy worth exploring is whether it might be possible to upgrade the pending green card of the spouse of the H-4 - which is the original basis of the H-4 employment authorization - to a higher preference category in which the green card would be granted on a faster track. Upgrading the preference category in many cases allows the H-1B visa holder and H-4 spouse to file their Applications for Adjustment to U.S. Permanent Resident status sooner and, by virtue of their pending Adjustment Applications, to both obtain employment authorization from USCIS.

At the very least, all eligible H-4 visa holders currently without employment authorization should apply for it right away, before any proposed changes to the H-4 employment authorization program become effective. Similarly, H-4 visa holders who already have employment authorization under the current program should file renewal applications as soon as USCIS policy allows, which is up to 180 days before the expiration date of the current employment authorization. Neither of these strategies offer any guarantee since the parameters of the rule change are as yet unknown, but they could offer the best chance for holding off the end of H-4 employment authorization for as long as possible.

Please contact O'Brien Law LLC if you should have any questions about employment authorization for H-4 visa holders.