Associate Partner

H4 EAD holders brace for proposed rule change as Trumpism takes hold of immigration agenda

The H4 EAD trail hasn’t gone cold, it’s a tense and muted countdown to a proposed rule change the Trump administration is likely to put out as early as February which may seek to overturn an Obama era regulation that allowed dependants of H1B workers to pursue employment in the USA.

The spoiler arrived well in advance in the form of an agenda item in the federal register. The Department of Homeland Security minced no words: “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” is how the intent was worded in its Fall 2017 Regulatory agenda.

Link: A taste of what’s to come? Agenda item on H4 EAD published last Fall

 H4 EAD holders brace for proposed rule change as Trumpism takes hold of immigration agenda

Trump's pick for DHS chief Ms Nielsen will be in the spotlight as the H4 decision barrels towards the finish line/ Reuters

Unless there’s some esoteric wordplay here, it seems to say clearly that the DHS wants to amend the original rule published for H4 EAD in 2015.

Two separate themes exist here - one is the legal case itself which is Save Jobs USA versus DHS and the other is the Trump government’s pet method of dealing with these issues.

There isn’t much the Trump administration can do about the court case which has a life of its own but the government has certainly made no secret of the fact that it is not going to aggressively defend the existing rule either.

As in the case of the Dreamers Act, the government is simply allowing the programme to fade away rather than tamper with it on a retrospective scale. The attendant chaos and disruption fit neatly into the broader theme of economic nationalism that put Trump into the White House in 2016.

In the case of the H4 EAD too, the government may end up using the same method - whenever the H4 EAD expires is where the road ends - if the intention is to end the programme and that's what it seems like so far.

What happens to those who have an EAD now? Nothing changes, really. All talk of an H4 EAD repeal is still in the realm of conjecture although the threat is real and will probably stay that way in the name of Trumpism.

What about those whose H4 EADs are up for extension? Again, on the face of it, the same logic applies, say most legal shops. Nothing has changed and even if it does, that’s still a few months away at the very minimum so why not renew?

In any case, almost all the questions coming to law firms are now circling around how to deal with the consequences of a rule change.

The H4 EAD was born out of regulation in May 2015 that allows certain H4 spouses who have an ongoing green card case on to pursue employment in the US.

Here’s what ace immigration attorney Cyrus Mehta has to say on the state of play of the H4 EAD as it stands today: "The spouses on H-4 visas who receive work authorization are a small subsection of the entire H-4 population. It is confined to those H-4s who are eligible to receive a green card except for the priority date not being current. If they would any way have a green card ultimately, why not issue a work authorization to this deserving group of people while they are endlessly waiting for the green card? The wait could be more than a decade long, and the only reason for this wait is that they were born in India, which is oversubscribed as a result of the unfair per country limit in the employment second and third preferences. There is ample legal authority in the Immigration and Nationality Act to support the issuance of work cards to discrete groups of foreign nationals. The H-4 work permit  rule was upheld by the lower court, and if the Trump administration were to hold their ground, they would win on appeal. Unfortunately, the Trump administration is motivated by its America First doctrine to provide jobs to Americans. But in a full employment economy, there are enough jobs available for everyone and so the move to take away work permits from a narrow class of H-4 spouses - mainly women who are in the workforce  -  is driven less by economics and more by prejudice."

Whenever the rule change does get posted, you can expect a surge of action during the comment period. This is a high decibel issue among the expat community here in the US and thousands of H4 visa holders are just waiting to storm the comment section with their outpouring.

Link: How the rulemaking process works

In its 27 years of existence, the H4 visa has never been under such sharp glare except when the H4 EAD rule came into being in 2015. Now, in less than 3 years since then, that temporary relief is under threat.

If the administration pushes for recission of existing H4 EADs which are say, valid for a couple more years too, expect lawsuits to be filed in plenty.

Although employment based visas account for a small portion of total non immigrant influx into the US, the slower pace of approvals seen together with the sudden spike in challenges to applications and the clutch of immigration related hearings in Congress all reflect a shift in how the White House views the non-white outsider.

This will go down to the wire.

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Updated Date: Jan 19, 2018 22:43:50 IST