The Future of H-4 EADs
There has been a fair amount of concern regarding whether Employment Authorization Documents will continue to be available to spouses of certain H-1B visa holders under the current administration.
Below is an overview of the current status.
The litigation, Save Jobs USA v. DHS, initiated in April 2015 challenging the legality of the H-4 EAD regulation is ongoing. On April 3, 2017, the Department of Homeland Security (DHS) asked the court to hold the case in abeyance for up to six months, saying the Trump administration needs time to decide on revising the rule. This is a reversal of position, as the DHS under the Obama administration defended the legality of the H-4 EAD rule.
Because the H-4 EAD is regulatory – regulations were issued under the Obama Administration, following the Administrative Procedures Act (APA) – to reverse or change the rule will require the Trump administration to follow the APA and go through a similar regulatory process. In its motion, DHS stated “it is appropriate to actively reconsider whether to revise the H-4 rule through notice-and-comment rule-making.” Rule-making under the APA generally takes months, if not a year or more. However, the DHS motion does indicate the Trump administration has an intention to re-visit the H-4 EAD.
We are not aware of any legislation which relates directly to H-4 EADs. However, as noted in our update about H-1B site visits, there are bills pending which relate to H-1B and L-1 visas. To the extent there are changes to the H-1B and L-1 visa classifications, that would necessarily impact the relevant dependent classifications.
It is important to note that at any given time there are a variety of immigration-related bills introduced and pending in the Congress. However, most do not get through the process all the way to enactment, and if they do, there are likely to be changes in the content by the time the bill comes law.
Leaked Executive Order
In January, a draft Trump administration executive order was leaked to the press. The January 23, 2017 draft order entitled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” mandated review of all employment authorization for foreign nationals, including EADs. However, unlike the other immigration-related executive orders (related to the travel ban, interior enforcement, and the border wall), which were leaked and then issued almost verbatim shortly after the leak, this order has not been finalized or executed. However, we are seeing a number of policy changes at various agencies which are consistent with the tone and approach of the draft order
The draft order:
– Directs DHS to review all regulations that allow foreign nationals to work in the U.S., determine which of those regulations “violate the immigration laws or are otherwise not in the national interest and should be rescinded, and propose for notice and comment a rule to rescind or modify such regulations.”
– Calls out for review B-1 visitor for business, E-2 treaty investor, H-1B specialty occupation, H-2A agricultural worker, J-1 summer work travel exchange program, and L-1 intracompany transfer visa categories.
– Expresses specific concern regarding parole authority and F-1 practical training work authorization.
– Require a report on “the actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by nonimmigrant workers in the H-1B, L-1, and B-1 visa categories.”
With respect to EADs, the draft order would mandate:
– Reporting twice a year regarding “the total number of individuals in the U.S. with EADs, and the categories or bases for issuance of all such EADs.”
– Issuance of a report twice yearly of “the total number of foreign-born persons authorized to work in the U.S., sorted by immigration status, and the total number of persons in the U.S. in each of the employment-based nonimmigrant statuses.”
Again, this draft order is only that – a draft document which was leaked to the press and to date has not been finalized. However, it does provide insight into the new administration’s approach toward employment-based immigration.
It is fair to say that the above presents a negative view of the overall impact of the foreign national workforce in the United States, reflecting the shift between the two presidential administrations in national policy and dialogue related to immigration.
We do our best to give you the facts without too much editorializing, so you can process the information and make educated decisions based on the current and possible prospective state of the law. However, perhaps it goes without saying that we believe the overall impact of foreign nationals contributing their efforts in the United States is a positive one, and we’re not alone. For some information to that end, please see the Fact Sheet published by the American Immigration Council — “The H-1B Visa Program:Â A Primer on the Program and Its Impact on Jobs, Wages and the Economy.”