UPDATE: On November 17, 2017, the U.S. District Court for the District of Columbia granted the government’s motion to hold proceedings in abeyance pending further order of the court and denied the motion to reschedule briefing and oral argument. Parties have been given until January 2, 2018, to file motions to govern further proceedings.
UPDATE: The Department of Homeland Security (DHS) has requested additional time to review the H-4 Employment Authorization Document (EAD) program. As a reminder, since May 26, 2015, certain H-4 dependent spouses of H-1B visaholders have been eligible for employment authorization. DHS has requested until December 31, 2017, to further review the H-4 EAD program, indicating that it may issue a new proposed rule during the interim. As a reminder, the current litigation does not cover other categories for EADs, such as L-2 dependent spouses of L-1A/L-1B visa holders. The situation remains fluid, and as information becomes available, we will provide regular updates.
Since May 26, 2015, certain H-4 dependent spouses of H-1B visaholders have been eligible for employment authorization. H-4 dependent spouses have been eligible to apply for an Employment Authorization Document (“EAD” card) if the primary H-1B visaholder is the beneficiary of an approved Form I-140 (Immigrant Petition – second step of the employment based green card process) or has been granted an extension beyond the standard six year limit period of stay. If granted, the H-4 dependent spouse is eligible to work for any U.S. employer during the period of EAD validity. According to U.S. Citizenship and Immigration Services, the H-4 EAD rule seeks to support the goals of attracting and retaining highly skilled foreign workers and minimizing disruption to U.S. businesses.
In 2015, a group named “Save Jobs USA” challenged the H-4 EAD rule and requested an injunction against such rule, with such challenge ultimately being dismissed. The group has since filed an appeal of such dismissal, with the U.S. Department of Justice under the current administration recently filing a brief in support of such challenge. Immigration Voice, an immigration advocacy group, subsequently filed a motion to intervene on behalf of individuals currently working with H-4 EADs. While there has not yet been a court decision, it is important to note that Attorney General Jeff Sessions has been critical of the H-4 EAD rule in the past.
If an injunction against the H-4 EAD rule is issued, companies may be required to remove such individuals from payroll, as they may no longer hold employment authorization. The current litigation does not cover other categories for EADs, such as L-2 dependent spouses of L-1A/L-1B visa holders. The situation remains fluid, and as information becomes available, we will provide regular updates.
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