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June 2018: The Beginning of the End of the H-4 EAD
Mar. 2 2018

June 2018: The Beginning of the End of the H-4 EAD

Topics: Immigration

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.

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For over 20 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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