Federal Agencies, Practice Resources

Practice Alert: Proposed H-4 EAD Rescission Rule Withdrawn from Review at OMB

1/28/21 AILA Doc. No. 19022203. Business Immigration

January 28, 2021

On January 25, 2021, the Trump-era proposed regulation, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” (commonly known as the “H-4 EAD Rescission Regulation”) was withdrawn from review at the Office of Information and Regulatory Affairs (OIRA), which is an office within the Office of Management and Budget (OMB) tasked with the review of Executive Branch regulations. The proposed regulation had been pending with OIRA since February 2019. The withdrawal of this proposed regulation was in response to a regulatory freeze memo issued by the Biden Administration on January 20, 2021, freezing all rulemakings pending review.

Screenshot of withdrawal

 

By way of background, the regulatory proposal first appeared in the Department of Homeland Security (DHS) Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan. The proposed regulation was received by OIRA for review in February 2019 and has been pending review ever since. Although the text of the proposed regulation was not made public, the title of the rule made it apparent that it would propose removing from the regulations the ability of certain H-4 spouses of H-1B nonimmigrants to apply for work authorization. The H-4 work authorization program was first created by regulation in February 2015 under the Obama administration.

It is important to note that litigation remains pending in federal court challenging the DHS final rule promulgated in February 2015 that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants. Inasmuch as a primary reason for the court repeatedly staying further action on the lawsuit was a representation by DHS that it would issue a regulation revoking eligibility of H-4 nonimmigrants for work authorization, the withdrawal of the rule will likely trigger efforts by the plaintiffs to resume litigation. For information about the pending litigation, please see Documents Related to H-4 EAD Litigation (Save Jobs v. DHS).

Notably, on January 20, President Biden announced an immigration bill, the U.S. Citizenship Act of 2021, which would include a provision to provide work authorization to certain spouses of H-1B visa holders, along with addressing related issues like clearing the employment-based immigrant visa backlog, recapturing unused visas, reducing lengthy wait times and eliminating the per-country visa caps. Although the bill has not yet been introduced in Congress and the text has not yet been released, the legislative proposal attempts to codify H-4 work authorization for dependents of H-1B visa holders into the Immigration and Nationality Act (INA).

AILA will continue to update this practice alert as more information becomes available.

 

 

In October 2018, DHS released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan, which provides the public with an overview of anticipated federal regulatory activity. The regulations featured in the Unified Agenda and the timelines stated are aspirational and are not strictly adhered to.

One DHS proposed regulation, entitled "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization" (commonly known as the “H-4 EAD Rescission Regulation”) is featured in the Fall 2018 Unified Agenda and is described as follows:

On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

Although the Fall 2018 Unified Agenda indicates a November 2018 time frame for publication of this proposed rule, the rule has not yet been published. The rule was sent to the Office of Management and Budget (OMB) on February 20, 2019, and is currently pending review. Once OMB completes its review, a notice of proposed rulemaking will be published in the Federal Register and will be open to the public for notice and comment. The proposed regulation will not take effect until finalized by DHS, a process that typically takes several months.

Please note that the text of the proposed rule has not yet been made available to the public. AILA will continue to update this practice alert as more information becomes available.

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