U.S. Citizenship and immigration services granted H-4 visa to the Spouse and Children under the age of 21 years of an H- type visa holder. Through H-4 visa family members of the H-type visa holder can stay in the US. Since H-4 visa came into existence it doesn’t allow the family members to work. But on 26 may, 2015 USCIS passed Employment Authorization for certain H-4 dependent spouses rule. As all about H-4 visa is uncertain, the question is asked repeatedly What will happen to H4 EAD under Donald Trump Presidency?

Requirements to be eligible for H-4 visa EAD rule-

The H-1B holder’s spouse is eligible for work authorization EAD if he or she fulfills the following conditions-  The H-4 visa dependent spouses were eligible for provided the H-1B spouse satisfies one of the below two:

• If they have approved immigration petition to get a green card or permanent residency in the USA that is petition I-140.
• If their green card application is pending they can show the status of their H-1B visa which should be extended beyond 6 years.

Background- What’s the H4 EAD Lawsuit?

Soon H-4 visa EAD rule came into existence, many of the h-4 visa holder spouses start applying for the jobs. An organization called as “Save jobs in the USA” comprised of mainly IT workers claimed that many of the H-1b holders replaced them in their jobs. The organization filed the lawsuit against Department of Homeland Security (DHS) on April 23, 2015, before the rule to be enacted. Save jobs the USA claimed two things in particular

1. Giving the permission to H-4 visa holders to work will increase the pool of workers who are looking for a job.
2. Secondly, they claimed department of homeland security has no authority to grant permission for H-4 visa EAD rule.

But when Federal District Court didn’t find any grounds on which lawsuit had been filed, it gets dismissed soon by the court.

H4 EAD & Trump Administration Timeline –
What will happen to H4 EAD under Donald Trump Presidency?

This question is repeatedly been asked since President Trump took up the office of charge. Let’s look at the timeline of events that happen after the lawsuit gets dismissed-

• February 2, 2017: to look on the matter carefully the Trump administration requested state of temporary inactivity for 60 days. But after completion, they again demanded extension up-to 180 days before coming to an opinion.
• September 20, 2017:  SAVE Jobs USA feared that the delay can hurt the American workers, so they file a motion station the DHS was unable to do something on the publication of the rule and they want an oral argument to conclude the case.
• September 27, 2017:  DHS (Trump administration) again filed the request to extend but it was denied by the court. This demand for extension is only to ensure the approach to implement Buy American Hire American and meanwhile all this procedure they will think of the way to H-4 visa rule.
• December 14th, 2017: DHS has published an agenda which has a basic intention of amending the original H-4 visa EAD rule and remove the H-4 visa spouses from the alien list accordingly to their policy of Buy Americans Hire Americans. DHS making the claim of Organization invalid- that DHS has right to do this as per INA regulations.
• February 21st, 2018: After a long wait, a court finally ordered in favor of DHS claiming that they see the plan of rule-making to remove H-4 EAD. Furthermore, the court asked DHS to report within 90 days.
• Between March 26^th and 4^th April– as with the consultation of USCIS, DHS is working on the removal of H-4 visa EAD rule. Meanwhile few Members of Congress requesting USCIS Secretary to reconsider not revoked the rule. Not considering the appeal of Congress USCIS sent their proposed planning to remove H-4 visa rule and some changes regarding H-1B visa to the Senate.
• May 16th, 2018: members of Congress lead by Rep. Pramila Jayapal and Rep. Mia Love, sent the signed letter to the DHS asking them to reconsider the proposal. But that too all in vain.

What Happens Now – Can H4 EAD be revoked by Trump Administration? What’s the Impact?

Now the removal of H-4 dependent spouses from the class of aliens for work authorization comes under Spring 2018 Regulatory Agenda. June 2018 is the timeline for the rule to be sent to OMB for review. As all of the procedure is uncertain that nothing can be said about what is going to happen. In-spite of congress sending letters to the USCIS for considering again about the revoking of the rule, USCIS replied that they are working the rule in compliance with Buy American Hire American. For a time being nothing can be predicted but advisable would keep applying for the H-4 visa EAD as there is no harm in applying.

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Diksha Garg

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