On February 20, 2019, U.S. Citizenship and Immigration Services (USCIS) submitted its proposed regulation to remove work authorization for certain H-4 spouses to the Office of Management and Budget (OMB). It is likely that OMB will complete its review within 30 days.
What happens next?
Once OMB completes its review, the proposed regulation will be made available for public comment. It remains to be seen whether USCIS will allow a 60-day comment period, or limit comments to 30 days, as it did with the H-1B lottery regulation, Registration Requirement for Petitioner Seeking to File H-1B petitions on Behalf of Cap-Subject Aliens. Once the comment period closes, the regulation will undergo additional review by OMB and the Department of Homeland Security (DHS) before it is signed by the DHS Secretary and published in the Federal Register.
Why the rush?
Since it is clear the Administration intends to push this regulation through quickly, we may see a final regulation published by summer 2019. A combination of factors are likely influencing this rapid pace. Several priority regulatory initiatives have already made good progress, including the H-1B lottery regulation (see our coverage here) and the public charge regulation, and the Administration continues to focus on curtailing legal immigration in the employment context under the Buy American Hire American executive order.
In addition, Save Jobs USA, a group of former employees of Southern California Edison, sued USCIS in April 2015 to prevent the Obama Administration from implementing the final regulation that initially granted work authorization to H-4 spouses. After several years of off-again-on-again litigation, the federal government continues to argue that the court should not decide the case until USCIS publishes its final regulation removing H-4 work authorization. The next court date is March 18, 2019. In general, federal agencies prefer to avoid or moot litigation that involves agency regulations and policy because they do not want to risk having the judicial system set law and precedent. This is most likely a significant factor for USCIS with respect to this regulation.
What are the practical implications for H-4 Spouses?
Although we will have to wait to see how USCIS implements the regulation, it is expected that no new EAD applications filed by certain H-4 spouses will be accepted as of the date of issuance. What remains to be seen is what will happen to EADs that expire after the regulation is implemented and to EADs that are still in the processing queue as of date of implementation. Operationally, it would seem simplest for USCIS to stop accepting new applications as of the date of issuance, allow approved EADs to remain valid to their expiration date (even if that date is later than the date of the regulation), and continue processing any applications that are still in the queue, as filing fees for those will have already been collected and work has been done to adjudicate the filings. However, USCIS could decide to cease processing EADs in the queue, although this would likely cost the agency significant time and money both to refund fees and to update A-files appropriately.
Those H-4 spouses who are eligible to apply for initial work authorization, even for future employment, and renew existing authorization may be well advised to file as quickly as possible. At this time, USCIS is not accepting renewal applications earlier than six months prior to the current EAD expiration date. In addition, employers may want to consider whether there are other nonimmigrant classifications that H-4 spouses may be qualified for, such as H-1B, and whether they are willing to sponsor the individual.
If specific legal advice is required, please contact one of our attorneys, who will be happy to assist.