DHS Adds H-4 EAD Rollback to Regulatory Agenda: What H-1B Families Should Know

 The Department of Homeland Security (DHS) has added a new regulatory agenda item that could eventually eliminate employment authorization for certain H-4 spouses of H-1B workers. 

It's very important to understand that "eventually" means that no H-4 EAD ban has been implemented by DHS, that DHS hasn't issued a proposed rule yet, or when it will take effect.

For international students and professionals navigating H-1B status and U.S. employment authorization, the distinction between a regulatory plan and an effective rule is critical.

What Is DHS Proposing for H-4 EAD Holders?

 The new DHS regulatory agenda item is titled “Removing H-4 Dependent Spouses From the Classes of Noncitizens Eligible for Employment Authorization.” 

 According to the official agenda, DHS intends to propose removing certain H-4 dependent spouses from the category of people eligible to request employment authorization under (c)(26). 

The agency said that the proposal would essentially reverse all of the changes made to this area in law since the 2015 H-4 EAD Rule was enacted and would revert back to the previous position where H-4 spouses are not entitled to a work permit due to being an H-4 spouse.

DHS however has not published the actual language that it will use as proposed regulations. Therefore, many critical aspects – including any rules that may be used during a transition period; how those currently with valid EADs would be treated; and what date or time frame there is for implementing these new rules – have not been defined.

 Most importantly, current H-4 EAD holders have not lost their work authorization because of this agenda announcement. 

Who Can Currently Qualify for an H-4 EAD?

 Not every H-4 spouse automatically has permission to work.

Under the rule that took effect on May 26, 2015, certain H-4 spouses may apply for employment authorization when the principal H-1B spouse meets specific employment-based green card conditions.

USCIS instructions currently state that an H-4 spouse applying under category (c)(26) generally must show that the H-1B spouse either:

• Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Has received qualifying H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act (AC21).

Eligible H-4 spouses apply for employment authorization using Form I-765.

The new DHS agenda specifically says it wants to reverse the 2015 regulatory changes. However, until DHS publishes a proposed rule, the exact scope and mechanics of that reversal cannot be known.

Will “600,000 Jobs” Really Open Within 2–4 Weeks? 

Reports surrounding the proposal have circulated a claim that eliminating H-4 employment authorization could make more than 600,000 jobs available within two to four weeks.

That should not be confused with an official DHS projection.

The Times of India reported that the figure came from immigration-restriction advocates reacting to the regulatory agenda announcement. The official DHS agenda does not state that 600,000 jobs will become available, nor does it say that H-4 spouses will lose employment authorization within two to four weeks.

In fact, the government's own regulatory agenda currently provides no date at all for publication of the proposed rule.

The 600,000 figure also should not be treated as the government's estimate of the number of people currently working through H-4 EADs. When DHS issued the original rule in 2015, it estimated that as many as 179,600 H-4 spouses could become eligible to apply during the first year and approximately 55,000 annually in subsequent years. Those were eligibility estimates made at the time, not current employment counts.

What Should H-4 EAD Holders Know Right Now?

 For now, the existing H-4 EAD rules remain in place.

The regulatory agenda is an indication of what DHS intends to pursue, not a rule that has already changed immigration law or employment authorization.

The next major development to watch would be publication of an official Notice of Proposed Rulemaking. The current agenda identifies an NPRM as the anticipated next regulatory action but gives its date as “To Be Determined.”

Until further action occurs, eligible H-4 spouses can continue following current USCIS requirements for Form I-765 applications and employment authorization.

H-4 families should pay particular attention to future DHS and USCIS announcements rather than assuming that headlines about an immediate work ban are already in effect. If DHS publishes the proposed rule, the actual text will provide much more information about whom the change would affect and how the agency intends to implement it.

For now, the central takeaway is simple: DHS wants to reconsider H-4 EAD eligibility, but it has not ended the program.

Sources:

• DHS/USCIS Unified Agenda — Removing H-4 Dependent Spouses From Employment Authorization Eligibility
• Federal Register — Employment Authorization for Certain H-4 Dependent Spouses (2015 Final Rule)
• USCIS — Form I-765 Instructions and H-4 (c)(26) Eligibility Requirements
• Times of India — New Plan to End Employment Authorization for Some Spouses of H-1B Visa Holders