H-4 EAD Program may be in Jeopardy

The Murthy Law Firm continues to receive inquiries from those concerned about whether the program that allows certain H-4 spouses to apply for employment authorization documents (EADs) will be altered, or even terminated. For the time being, the H-4 program remains unchanged. But, there have been indications from the Trump Administration that the program may be at risk.

H-4 EAD Lawsuit

The H-4 EAD program went into effect under President Obama on May 26, 2015. Shortly before the effective date, Save Jobs USA, a group of former employees of Southern California Edison, filed a lawsuit against the U.S. Department of Homeland Security (DHS) to try to block the regulation. The lawsuit was widely considered to have little chance of success. In fact, the trial court dismissed the lawsuit, ruling that Save Jobs USA lacked legal standing to challenge the rule and, even if the case were to proceed, the DHS would likely win on the merits.

Trump Administration’s Response to Appeal

Save Jobs USA appealed, and the case now sits before the U.S. Court of Appeals for the District of Columbia Circuit. There remains little reason to believe that Save Jobs USA will succeed this time around. However, the Trump Administration’s response to the appeal is telling.

Rather than directly contesting the lawsuit, over the past year, the Trump Administration has instead asked the court for several abeyances (i.e. delays). The latest delay came in September 2017, with the Administration requesting that it be given until December 31, 2017 in order to reconsider the rule in light of President Trump’s Executive Order. This request was granted by the court on November 17, 2017.

There is, of course, no evidence that the H-4 EAD program depresses wages or employment opportunities for U.S. workers. But, the Administration has maintained that, contrary to the reams of studies that show the positive impact foreign national workers have on the U.S. economy, their presence is a threat to American workers.

Report That Proposed Regulations Are Imminent

If the Trump Administration wishes to alter or completely dismantle the H-4 EAD program, it very likely would have to go through the regulatory process. And, in fact, on November 17, 2017, the San Francisco Chronicle reported that the Administration is drafting a proposed regulation to rescind the program. If true, once the proposed rule is published, it would still likely take at least a few months to end the program. Further, until details of this rumored proposal are released, it is not clear how it may impact those with existing H-4 EADs and/or pending H-4 EAD applications.

Conclusion

As soon as any concrete information is made available regarding the fate of the H-4 EAD program, details will be posted on MurthyDotCom. Subscribe to the free MurthyBulletin for future updates on this and other important topics of concern to you and your family.

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