Latest developments for H-4 spousal work regulation

  • United States
  • 04/02/2017
  • Berry Appleman & Leiden LLP

As early as next week, the Trump administration will be required to take a position in federal court on the H-4 spousal work authorization regulation.

The regulation allows spouses of certain H-1B visa holders to obtain work authorization. It was a key policy achievement of the Obama administration, but the Trump administration has signaled that it will seek to rescind or modify the regulation. Changes to the H-4 spousal work authorization regulation are likely to be controversial and could potentially disrupt the work authorization of current employees.

What is the H-4 spousal work authorization regulation?

The H-4 visa is for immediate family members (spouses and children under 21 years of age) of H-1B visa holders. Though federal statute does not explicitly authorize H-4 visa holders to work, the Department of Homeland Security (DHS) promulgated regulations in 2015 allowing certain H-4 visa holders to qualify for employment authorization. To be eligible, H-4 visa holders must be a dependent of an H-1B employee who: (1) is the principal beneficiary of an approved I-140, Immigrant Petition for Alien Worker; or (2) has been granted H-1B status under sections 106(a) and (b) of the AC21 (under which H-1B nonimmigrants seeking employment-based lawful permanent residence may be eligible to work and remain in the United States beyond the six-year H-1B period of admission limitation).

The rule was implemented to alleviate personal and economic burdens placed on H-1B visa holders and their families during their transition from nonimmigrant to lawful permanent status by allowing their family members to work. In the process of implementing the final H-4 work authorization rule, DHS engaged in the required notice-and-comment rulemaking procedures, which provided an opportunity for public comments. The agency received nearly 13,000 comments during the 60-day public comment period. Commenters included individuals, employers, academics, labor organizations, immigrant advocacy groups, attorneys and nonprofit organizations. While opinions varied, a substantial majority (approximately 85 percent) of commenters supported the described rule. Approximately 10 percent of commenters opposed the proposed rule, citing potential adverse effects for the U.S. workforce, including displacement of workers, increased unemployment and decreased wages.

How many individuals have obtained work authorization under the H-4 spousal work authorization regulation?

Not all H-4 visa holders qualify for work authorization. DHS estimated that the rule would add as many as 179,600 people to the U.S. labor force in the first year of implementation, and as many as 55,000 people annually in subsequent years.

What is the status of the litigation?

An organization of information technology workers, Save Jobs USA, challenged the H-4 employment authorization rule in the U.S. District Court for the District of Columbia. The organization alleged that the President does not have the legal authority to issue a rule permitting H-4 dependent spouses to work in the U.S. because the regulation unfairly creates job competition by adding additional foreign workers to the labor force. The court dismissed the complaint without reaching the merits, finding that the tech workers did not demonstrate how they had been injured by the rule, and therefore lacked standing.

The tech workers are currently appealing the dismissal at the U.S. Court of Appeals for the District of Columbia Circuit. DHS requested that the Court hold the case in abeyance for 60 days, up to and including April 2, 2017. The government stated in its request that the extension is necessary to allow “the incoming leadership personnel adequate time to consider the issues.”

Will the government modify or rescind the H-4 spousal work authorization regulation?

It is not yet known how the government will respond regarding the challenged regulation.

How long will it take for the government to modify or rescind the regulation?

Typically, this process takes approximately 6-12 months. The government could seek to move faster by arguing that DHS has good cause to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.”

What will be the impact on H-4 spouses who have already received an Employment Authorization Document (EAD) under the current regulation?

Until the regulation is rescinded or modified, the H-4 regulation remains in effect, and H-4 spouses with EADs will continue to be eligible to work. It is unknown whether any potential change would only have prospective effect or whether it would seek to rescind the previously issued work authorizations.

BAL Analysis: While the Trump administration has signaled that it would like to change or rescind the H-4 spousal work authorization regulation, it has not yet done so. The legal challenge will force the administration to reveal a position on the regulation, possibly as soon as next week. The case is Save Jobs USA v. U.S. Department of Homeland Security, U.S. District Court for the District of Columbia, C.A. No. 1:15-CV-615. BAL will continue to provide updates on significant developments on this case.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@balglobal.com.

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