DHS Rule on Work Authorization for Certain H-4 Dependents

March 20, 2019



Proposed Rule to Rescind H-4 Employment Rule

Appearing in the Fall 2018 Regulatory Agenda:

11/00/2018 target date. Proposed Rule Stage. “On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule.  DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization."

NAFSA note: On February 20, 2019, DHS submitted this proposed rule for OMB review. See NAFSA's Basics of Rulemaking Under the APA page to see where OMB review of a proposed rule fits into the regulatory process.

Save Jobs USA Lawsuit

  • On March 13, 2019, the court set a revised briefing schedule: APPELLEE (DHS) Brief due on 04/01/2019. INTERVENOR FOR APPELLEE Brief due 04/08/2019. APPELLANT (Save Jobs USA) Reply Brief due 04/29/2019.
  • On April 3, 2017, the Government filed a motion with the Court of Appeals, asking the Court to hold the proceedings in abeyance for up to 180 days (until September 27, 2017), to allow DHS to reconsider the H-4 EAD rule and whether it should publish and open for public comment a new proposed rule.
  • On September 30, 2016, Save Jobs appealed the District Court's decision to the U.S. Court of Appeals for the District of Columbia Circuit.
  • On September 27, 2016, the U.S. District Court for the District of Columbia dismissed a lawsuit filed on April 23, 2015 by Save Jobs USA. Save Jobs' complaint had asked the court to strike down the H-4 employment authorization rule and to enjoin DHS from implementing it, arguing that DHS acted beyond the scope of its statutory authority in promulgating the H-4 employment authorization rule, and that the H-4 employment rule "injures Save Jobs USA’s members by (1) depriving them of statutory protections from foreign labor... (2) by increasing the number of economic competitors; and (3) by conferring benefits to their economic competitors on H-1B visas."

Under a final rule effective May 26, 2015 [80 Fed.Reg. 10283 (February 25, 2015)], certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status can apply to USCIS for an Employment Authorization Document (EAD) that will allow them to work in the United States. Finalizing the H-4 employment eligibility regulation, which was originally proposed on May 12, 2104 was an element of the immigration executive actions President Obama announced in November 2014. USCIS stated that it had received approximately 13,000 comments on the proposal.

H-4 dependent spouses of H-1B nonimmigrants can apply for an EAD under the rule if their H-1B spouse: 

  • Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended (That Act permits certain H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status).

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required application fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS began accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

DHS amended Form I-765 and that form's instructions to facilitate the new benefit. According to the preamble to the rule:

"DHS has revised the originally proposed Form I-765 and form instructions to clarify the supporting documentation that applicants requesting employment authorization pursuant to this rule must submit with the form to establish eligibility, and to state that USCIS will accept Forms I-765 filed by such applicants concurrently with Forms I-539. DHS has also revised the Form I-765 to include a check box for the applicant to identify him or herself as an H-4 dependent spouse. The inclusion of this box will aid USCIS in its efforts to more efficiently process the form for adjudication by facilitating USCIS’s ability to match the application with related petitions integral to the adjudication of Form I-765."