On February 20, 2019, the Department of Homeland Security (DHS) submitted a proposed H-4 EAD regulation entitled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” to the Office of Management and Budget (OMB) for review.
DHS marked the proposed rule as “economically significant” which would allow the OMB to rap up the comment period in 30 days.
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Details of the proposal – including its impact on H-4 spouses who currently have EADs will not be disclosed until the rule is released for publication in the Federal Register.
The new H-4 EAD rule, once implemented will prohibit H-4 spouses of H-1B professionals from obtaining work permits. The reason that this is so significant is because outdated “per-country” limitations force the majority of H-1B visa holders who are from India to wait decades to receive a green card even after their employers have received confirmation from the U.S. Department of Labor that there are no minimally-qualified U.S. workers to fill the position.
After the public comment period, the government will review the comments that it receives and will issue a final rule to rescind the H-4 EAD program. There is no set timeframe for publication of a final rule, but since it is a priority for this Administration, we expect the regulation to be issued sometime this summer.
For all practical purposes, the implementation of this regulation will prevent their spouses from working and contributing to our economy. It is estimated that up to 100,000 spouses will be affected.
H-4 EAD Rule – What You Need to Do
If your H-4 EAD is expiring before the end of the year, we recommend that you apply for an extension of your H-4 EAD 180 days before it is due to expire. Hopefully, the new regulation will not cancel existing H-4 EADs.
If you are a professional (and most spouses with H-4 EADs are), this is the time to talk with your employer about sponsoring you for H-1B status. Yes, you could be subject to the H-1B lottery in April. However, remember that if you are sponsored by any of the following classes of employers, you are exempt from the lottery: (1) Jobs located at institutions of higher education; (2) Nonprofit organizations “related to” institutions of higher education; (3) Nonprofit organizations “affiliated with” institutions of higher education; (4) Nonprofit research organizations; and (5) Governmental research organization.
H-4 EAD Rule – Swift Congressional Action is Needed
How will the new H-4 EAD regulation affect the U.S. economy?
It is increasingly likely that foreign-born professionals will start to pursue their careers in medical research, artificial intelligence, engineering, medicine and other important areas essential to our economy in Canada, Europe, Australia and New Zealand instead of the U.S.
As a result, the next Google, Amazon or Apple may be started outside the U.S. and hundreds of thousands of U.S. workers will suffer because of this.
There is, however, a ray of hope. Bipartisan bills with hundreds of sponsors have been introduced in both the Senate and the House of Representatives which would end per-country quotas for employment-based green cards. Should these bills be passed in Congress and signed by the President, existing EB wait times could be shortened considerably.