H4 EAD Revoke News (Aug 2020, Spring Agenda)

H4 EAD news update today - DHS asks Federal court to not revoke H4 EAD rule. OMB review is pending and may never come out. Trump government has changed its stand?

Anil Gupta
  By Anil Gupta    Updated  3 Aug, 20


Update Aug 3, 2020 – H4 EAD news update today: There is no news of revocation process at this time. The OMB approval is still pending.

Earlier, DHS published its Spring 2020 agenda and the H4 EAD revocation was featured as one of the items with an anticipated date of Sep 2020.

There is no need to panic.

H4 EAD revocation is part of DHS Spring 2020 agenda
H4 EAD revocation is part of DHS Spring 2020 agenda

This agenda is shared by DHS twice every year and H4 EAD revocation features on it every year.

The current termination process is at the ‘proposed’ stage which means that nothing has been finalized. This has been going on for more than 2 years now.

It is expected to take another couple of years too based on past experiences. Then, there could be lawsuits that can further delay its implementation.

Does Trump Travel Ban Affect H4 EAD?

Trump’s travel ban for H1B does not affect H4 EAD. Do not worry. H4 EAD can be applied if you are inside USA and can be approved by USCIS at this time.

There is no other news about H4 EAD termination at this time which is currently pending for OMB approval. This cannot be expedited as assumed by David Pier.

Should You Worry?

There is no need to worry as per my opinion as H4 EAD cannot be stopped by executive order.

There is no progress in the H4 EAD revocation process at this time.

DHS Defends H4 EAD in Federal Court – May 2020

Earlier on May 7, 2020, DHS told the federal court that any claims of economic harm suffered by Save Jobs USA are completely speculative. it was widely reported as being a change of DHS’s opinion on H4EAD including by Law360.

The H4 EAD revocation process is going on in parallel with the SaveJobsUSA vs DHS court case. Both are related and hence sometimes cause confusion. H4 EAD’s fate is hanging on to these two streams separately:

  1. SaveJobsUSA vs DHS court case – American workers group asking to stop H4 EAD as it increases competition and takes away jobs.
  2. DHS’s own idea and process of revoking H4 EAD work Authorization motivated by Trump’s orders.

Note that neither of the two streams has reached a final result yet. The court has not taken any final decision and I expect that the OMB may not do anything either as DHS is not able to justify any economic loss to the US government at this time.

The hopes are alive that H4 EAD will not be terminated.

New York-based attorney Cyrus Mehta has echoed the sentiment in his talk with Times of India that DHS may be facing difficulties to convince OMB.

He says, “The Trump administration’s position in its latest pleading is at odds with the position it has taken earlier against work authorisations for H-4 dependants. They have been trying to issue a regulation to rescind the Obama era rule, but have not been able to get it through. Probably the Office of Management and Budget (OMB), may have advised that the proposed regulation had no economic and legal rationale. The administration must also be facing a lot of pressure from allies in big business who support H-4 EADs.”

Earlier on Sep 16, 2019, DHS had told the court that the earliest possible date that H4 EAD revoke may be published is Spring 2020.

EAD Revoke Rule details

H4EAD revoke rules will be available as and when OMB publishes them for public comments. DHS submitted the revoke rules to OMB for review on Feb 20, 2019.

DHS is actively working on making rules on removing H-4 Dependent Spouses from class C(26) of Aliens Eligible for Employment Authorization (EAD).

Marked as ‘Economical Impact and Significant’ rule, DHS has the legal obligation of giving only 30 days for public comments instead of longer 60 or 90 days!

Can H4 EAD be approved while OMB review is pending?

You can apply for new H4-EAD and H4-EAD renewals at this time. USCIS is actively approving H4-EAD applications.

Is DHS still working on revocation after SaveJobsUSA court case decision?

DHS is still working on the H4 EAD removal and the rule is currently pending for OMB approval.

This is a separate process and DHS initiated it themselves due to Trump administration policies.

The federal court judgment does not affect this process and H4 EAD termination is still on the cards.

Will H4 EAD be valid after DHS revoke rule publication?

Existing H4 EAD cards will remain valid after revocation. DHS is expected to stop the issuance of new cards and renewals.

Can H4 EAD be saved with Lawsuit?

Yes, a lawsuit is expected as and when DHS publishes its H4 EAD revoke rules.

A lawsuit will definitely extend the available time and the final judgments would define as to what happens with H1B dependent work permits.

Is the SaveJobsUSA vs DHS Federal Court Case over?

The federal court has sent the case back to the lower court after it gave a decision for SaveJobsUSA vs DHS case on Nov 8, 2019.

The lower court will now hear the case and decide whether DHS has any authority to issue H4 EAD work permits or not.

SaveJobsUSA has challenged that only congress can give EAD work authorization and not DHS.

When Can I apply for H4 EAD renewal?

You can apply 180 days before your current H4 EAD card expiry. USCIS is giving full 3-year validity.

H4 EAD Protection Act

H4 Employment Protection Act was re-introduced by the California Congresswoman (Eshoo, Lofgren) in 116th congress in May 2019 last week.

The chances of saving H4EAD with this law are very low at this time as compared to the high probability of success with H4 EAD revoke lawsuit.

Survey – 14k responses

Find the mood of H1B, H4EAD community. Google account required to fill the survey.



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The survey’s 14K responses reveal that H1b skilled people are getting ready to get Canada or Australia PR.

News Timeline

  1. Apr 8, 2019: ImmigrationVoice presented good defense in support of the H4 EAD rule citing it does not affect American workers.
  2. Apr 1, 2019: DHS informed the Federal court that the H4 EAD program does not affect job competition in the US job market based on their economic analysis.
  3. Sep 26, 2018 – U.S. Senators Kamala D. Harris (D-CA) and Kirsten Gillibrand (D-NY) letter to USCIS. USCIS reply (on last page) – Oct 16, 2018.
  4. Aug 23, 2018 – Business Roundtable letter supporting H4 EAD signed by Apple, ADP, American Airlines, Pepsi, Coca-Cola among other CEOs.
  5. Aug 20, 2018 – DHS to Federal Court – No intention of backing off on H4 EAD withdrawal.
  6. May 16, 2018 – 130 bipartisan congress members signed a letter of support.



Author

Anil Gupta
  By Anil Gupta           

Recent discussion on forum

  1. Vamsi_Krishna_Maring
    Vamsi_Krishna_Maring

    With the confusion around H4 EAD, is it advisable to apply for H4 EAD. I got my I140 approved last week and planning to apply for EAD.

    Please let me know your thoughts


  2. Anil.Gupta
    Anil.Gupta

    Hi @Vamsi_Krishna_Maring

    Do not worry about the H4 EAD news at this time. Nothing is final and this drama is going on for last 2 years.

    I strongly advise to apply for H4 EAD if you are eligible.


  3. divya_nathan
    divya_nathan

    Hi Anil,
    I am currently on an H1B valid till Dec 2019. Since my employer has decided not to go ahead with my PERM filing, I plan to go to India for an H4 stamping in Aug once my husband’s I140 is ready. Do you think it is still a viable option for me to apply for an EAD sometime in Sept 2019?
    Please advise.


  4. svkishore1988
    svkishore1988

    Hi Anil,

    My wife is in OPT and currently picked in H1B lottery, received RFE and waiting for her employer to reply for RFE.

    Meanwhile i am expecting my 140 process to be approved by USCIS around October 2019.

    Can i Apply to H4 EAD in case her H1B is not approved by October and still with USCIS?


  5. Anil.Gupta
    Anil.Gupta

    Hi @svkishore1988

    You can apply both H4 and H4 EAD once your i140 is approved.

    H4 EAD needs H4 status.


  6. svkishore1988
    svkishore1988

    Thanks for Reply, just an doubt if i apply both H4 and H4 EAD with H1B petition pending with USCIS, will my H1B will be voided once H4 is approved? say if my H1B petition is approved after converting to H4 can i move back to H1B?


  7. ravich
    ravich

    Hi Anil,

    I just want to know as per your knowledge about the H4 EAD revocation are they going to revoke the H4 EAD for sure?, I am planning to apply for H4 EAD very soon can you share your thoughts on this.


  8. Anil.Gupta
    Anil.Gupta

    Hi @svkishore1988

    How has your H1B been filed? Change of status or consular processing?

    If it is change of status, then it depends on what gets approved first i.e. H4 or H1B. The one to get approval last will define your status.

    H1B is not cancelled if you file H4.


  9. Anil.Gupta
    Anil.Gupta

    Hi @ravich

    As the government is actively working on removing H4 EAD, we can expect it to go away sooner or later.


  10. kalai
    kalai

    Hi Anil,

    My spouse got his I-140. Can I apply for H4 EAD at this time or I should wait to see what will happen to the H4 EAD decision? The Revoke rule affect the chances of H4 EAD approval and in case if gets approved, will they revoke the H4 EAD as soon as the rule is passed? Please advise.

    Thanks


  11. Anil.Gupta
    Anil.Gupta

    Hi @kalai

    At this time, I suggest to go ahead and apply H4 EAD.

    The H4 EAD revocation rule has been pending for 2 years now and there is no insight into when it will finally be released. You have enough time.

    Go ahead and apply.


  12. Desai_Mitul
    Desai_Mitul

    looks like opinions has been given.


  13. Anil.Gupta
    Anil.Gupta

    H4EAD Good News today as SaveJobsUSA vs DHS case reaches result and court decides in favor of DHS.

    ImmigrationVoice reports that court did not find DHS overstepping its authority in issuing H4 EADs. Court has sided with H4 EAD workers and SaveJobsUSA can now ask for re-trial in the lower court, which had earlier sided with DHS too.
    SaveJobsUSA had claimed that DHS has no authority to issue H4 EAD work permits.


  14. Kunal_Kulkarni
    Kunal_Kulkarni

    Hi Anil,

    Will H4 EAD be revoked/published in March/2020? Or is the revocation going to get delayed and will take more time? Please let us know your thoughts.


  15. Anil.Gupta
    Anil.Gupta

    I have already shared my views on the H4 EAD termination news tracking page. Please read.


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