H4 EAD News Nov 2019 – Court Case Result – Who Won? Revoke Rule Still Pending

H4 EAD news update today- DHS vs SaveJobsUSA Federal court case result. OMB review is pending for H4 EAD revoke rule - earliest publish date could be April 2020.

Written by Anil Gupta
  By Anil Gupta          Updated  10 Nov, 19

  235    


Nov 11, 2019 – Infosys H4 EAD Meeting with DHS

H4 EAD news update today: Our WhatsApp group member Pratik spotted that a new H4 EAD meeting has been scheduled by ‘Infosys’ with DHS on Nov 13, 2019.

H4 EAD Infosys meeting with DHS
H4 EAD Infosys meeting with DHS

If you have any details, please do share with us at contact[AT]am22tech.com and we can share here with your name.

SaveJobsUSA Court Case Result – Who Won?

Federal court gave their judgement on Nov 8, 2019 in SaveJobsUSA vs DHS case.

I have shared my analysis as to who won the court case – SaveJobsUSA or DHS? The bottom line is that Federal court has not stopped H4 EAD. They have just referred it back to lower court for trial again.

Note that DHS is still working on H4 EAD revocation rules. This result of this court case is only a temporary relief. Saving H4EAD will still need a separate lawsuit if DHS publishes revoke rules in Spring 2020.

March 2020 Is New OMB Publish Date

Earlier on Sep 16, DHS had told court that earliest possible date that H4 EAD revoke may be published is Spring 2020, which is probably sometime in March 2020.

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 judgement 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 their H4 EAD revoke rules.

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

Is the SaveJobsUSA vs DHS Federal Court Case over?

Federal court has sent the case back to lower court after it gave 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 California Congress woman (Eshoo, Lofgren) in 116th congress in May last week. The chances of saving H4EAD with this law are very low at this time as compared to high probability of success with H4 EAD revoke lawsuit.

OMB May Not Approve H4EAD Revoke Rule

John Miano from Center for Immigration Studies has the opinion that OMB may not approve H4EAD revoke rule.

Miano says that ‘Deep State’ (business lobby with government without explicitly showing it to public) will not let the H4 EAD go away. He has argued that DACA EAD was not defended by DHS in court with good arguments when they had the intentions of revoking it either. The same behavior has been shown by DHS in SaveJobsUSA federal court case.

John Miano believes that the text of H4 EAD revoke rule has been drafted in such a way that it is unlikely to survive a legal challenge.

My opinion and attorney analysis on why H4 EAD revoke may be blocked by lawsuit even if passed by DHS and OMB.

ImmigrationVoice Appeal Favors H4-EAD

ImmigrationVoice presented good defense in support of H4 EAD rule on April 8, 2019 in federal court

  • H4EAD does not affect American workers
  • DHS had full authority to give H4 work authorization as per law
  • H4 EAD add to federal and state taxes
  • H4 EAD is important for H1B families to help them economically sustain in USA

DHS says H4 EAD not affecting US workers

DHS informed Federal court on Apr 1, 2019 that H4 EAD program does not affect job competition in US job market based on their economic analysis.

The acceptance that H4 EAD does not affect American jobs is a win for H1B spouses along with a big blow to SaveJobsUSA’s case. It might be a hint that DHS may have something good for H4 EAD in their kitty. Only time will tell.

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.

DHS is actively working on making rules on removing H-4 Dependent Spouses from the 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!

H4-EAD Withdrawal Survey – 14k responses

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

Will H1B family move to Canada if H4 EAD is withdraw
Will H1B family move to Canada if H4 EAD is withdraw

Find the mood of H1B, H4EAD community. Google account required to fill survey.
Open H4 EAD withdrawal survey in a new window.


Open link in new window.

H4 EAD News Timeline

  1. Sep 26, 2018 – U.S. Senators Kamala D. Harris (D-CA) and Kirsten Gillibrand (D-NY) letter to USCISUSCIS reply (on last page) – Oct 16, 2018.
  2. Aug 23, 2018 – Business Roundtable letter supporting H4 EAD signed by Apple, ADP, American Airlines, Pepsi, Coca-Cola among other CEOs.
  3. Aug 20, 2018DHS to Federal Court – No intention of backing off on H4 EAD withdrawal.
  4. May 16, 2018 – 130 bipartisan congress members signed letter of support.

USA USA News
 



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. Anil.Gupta
    Anil.Gupta

    Hi @svkishore1988

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

    H4 EAD needs H4 status.


  5. 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


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9 more replies

  235 Useful Questions & Answers

  1. Vidhya
    Vidhya 15 Jul, 19 at 11:43 pm

    Hi
    My husand’s i140 may be filed in this week.
    It won’t be premium processing.
    Is there any chance for me to gyet ead approved?
    My H4 visa has validity till January.
    So Can I file the extension along with ead application?
    Or H4 extension and apply for Ead after that?
    What would be the recommended approach?


  2. Sindhu
    Sindhu 2 Jun, 19 at 12:57 am

    Hi Anil,

    My h4 extension and first time EAD was filed a few days ago. Will they process EAD simultaneously since I am already in h4 status? Or will they first do h4 extension (4-5 months) and then EAD (another 4-5 months)?

    Would really appreciate your opinion.
    Thanks for running this thread, it had been a great resource to follow EAD updates!!


  3. Anonymous
    Anonymous 21 May, 19 at 5:45 pm

    Hi Anil,
    I got H4 ead until 2022. If Husbands H1b is applying H1b transfer to different company. Is h4 ead need to apply transfer? Or can work on existing h4 ead.


    • Anil Gupta
      Anil Gupta 21 May, 19 at 7:17 pm

      No need to file H4 EAD with H1B Transfer. You can keep using the current H4 EAD as long as its valid.


  4. Sarah
    Sarah 21 May, 19 at 3:37 pm

    Hi Anil, I am currently on my last year of OPT (expiring this 09/07/2019). My husband is still waiting for his PERM approval (filed late March 2019). We are estimating to get his i140 before my OPT expires. Do you suggest we wait until getting his i-140 and then file H4 and H4 EAD together or we file H4 now with a start date in Sep? Thanks!


    • Anil Gupta
      Anil Gupta 21 May, 19 at 4:32 pm

      It is better to file F1 to H4 COS as early as possible as H4 COS can take 6+ months to get approval.


      • Sarah
        Sarah 21 May, 19 at 4:53 pm

        Thanks Anil. What if my H4 is approved before my OPT expires? Can I have H4 start on a certain date? Also, can I submit H4 EAD request before H4 approval? Thanks!!


  5. Smita
    Smita 21 May, 19 at 12:43 pm

    Hi Anil,
    I am filing for H4 status and I am the primary beneficiary of my approved I-140 in EB1A category. My husband has 3 years approved H1B status. Am I eligible for getting H4 EAD?


    • Anil Gupta
      Anil Gupta 21 May, 19 at 12:57 pm

      No, you are not eligible for H4 EAD if i140 for your spouse is not approved. Your own i140 can help your spouse to get H4 EAD but not you.


      • Smita
        Smita 21 May, 19 at 2:00 pm

        Thank you for your response.


  6. isa
    isa 21 May, 19 at 11:43 am

    HI Anil,

    I m in H4 EAD now and my i m selected in h1b lottery this year through my employer. Now If I want to stay in H4 EAD, what should i do ?


    • Anil Gupta
      Anil Gupta 21 May, 19 at 12:02 pm

      How has your H1B been filed? Change of status or consular processing?
      You should have chosen ‘Consular processing’ to keep your H4 EAD intact and taken action at the time of filing.


  7. Anamika
    Anamika 20 May, 19 at 6:12 pm

    Hi Anil,
    I am currently on H4 EAD and the extension is in process. Meanwhile my employer is going to file an H1 COS. What happens if the H4 is approved after H1 COS?


    • Anil Gupta
      Anil Gupta 21 May, 19 at 5:26 am

      You can withdraw H4 extension application once H1B is approved.


      • Anamika
        Anamika 21 May, 19 at 11:43 am

        Hi Anil,
        Thanks for your response. Even if the H4 is approved will I be in H1 status. Because H4 was normal and there was no change of status?


        • Anil Gupta
          Anil Gupta 21 May, 19 at 12:02 pm

          I don’t think so. If your H4 extension is approved, you will get a new i94 with status as H4 which will automatically change your status from (H1B to H4) if H1B was already approved.

          Ideally, USCIS should know that you are on H1B at the time of working on H4 and should deny H4 extension. But, if that does not happen, your status will change.


  8. kudasku
    kudasku 20 May, 19 at 3:33 pm

    Anil,
    At the worst case scenario if H4Ead revoke passed

    1) It wont impact existing EAD and no renewal after that
    2) Lawsuit would be file and revocation would be temporarily stopped. Folks can keep renew it until lawsuit completion done

    so i would expect nothing would happen for next 3 ro 5 years.


  9. dulay
    dulay 20 May, 19 at 11:25 am

    Is today the 90-day deadline of OMB review?


    • Anil Gupta
      Anil Gupta 20 May, 19 at 11:37 am

      The 90 days will complete tomorrow i.e. May 21, 2019.


  10. Karthik
    Karthik 18 May, 19 at 12:36 pm

    If you read the updates you would think H4 EAD reovking will have zero percentage chance. I don’t think that is the case. Many people plan many decisions based on this ruling. They may delay things based on your “updates”. Make sure you have disclaimer.


    • Anil Gupta
      Anil Gupta 18 May, 19 at 12:56 pm

      Thanks for your suggestion.
      My opinion is that everyone who is in USA on a work permit is expected to have some level of understanding of how law works and they should be able to understand the meaning of updates.




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