June 2018: The Beginning of the End of the H-4 EAD
The Trump administration announced that it intends to file a notice of proposed rulemaking rescinding the Obama Administrations’ H-4 Employment Authorization Document (“EAD”) rule. In a declaration filed in conjunction with litigation over the validity of the H-4 EAD rule, Kevin J. Cummings, Chief, Business & Foreign Workers Division of USCIS, informed the U.S. Court of Appeals for the DC Circuit, “The anticipated publication of the proposed [H-4 EAD revocation] rule under the current timeline is June 2018.”
In 2015, in an effort to ameliorate the very long wait certain legal immigrants face to receive lawful permanent residence or green cards, the Obama administration published a rule permitting the spouses of H-1B foreign workers who have completed certain steps in the immigration or permanent residency process to receive employment authorization. USCIS reports that it has issued approximately 104,000 H-4 EADs under this rule.
As a part of its “Buy American, Hire American” initiative, the Trump administration seeks to limit access to the labor market to foreign workers by rescinding this rule. Once the proposed rule is published, a final rule could be announced in as little as sixty days. While the exact text of the H-4 EAD revocation rule won’t be available until it is published, it is anticipated that USCIS will simply revoke the H-4 EAD rule, and deny any applications for H-4 EAD adjudicated after the publication of the final rule. It is not anticipated that USCIS would attempt to revoke any Employment Authorization Documents issued to H-4 visa holders prior to the issuance of the rule. These EAD cards will simply expire and not be renewed.
Employers should inventory their I-9 forms and flag the forms where the employee presented an EAD card. Unlike most documents presented for verification, an EAD card holder’s right to work in the United States expires with the card. Shortly before the expiry date of the card, employers should seek to revalidate the I-9 of an EAD card holding employee.