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Immigration Bulletin – DHS Issues Proposed Rule to Eliminate H-4 EAD

MARCH 1, 2019 BULLETIN TO ALL IMMIGRATION CLIENTS

On February 20, 2019, the Department of Homeland Security (DHS) submitted its long-anticipated proposed rule to remove H-4 dependent spouses from the classes of nonimmigrant visa holders who are eligible to apply for an employment authorization documents (EAD).

Background:

President Trump signed Executive Order 13788, Buy American and Hire American (BAHA) on April 18, 2017, signifying the administration’s commitment to ensuring the employment of American workers over foreign nationals. Consistent with this policy, DHS first announced its intention to review and rescind the H-4 EAD program on December 14, 2017. Over the course of the following year, DHS renewed and confirmed this intention without providing a timeline for the implementation of the new rule.

The Office of Management and Budget (OMB) has provided the title of the proposed rule: “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” but it has not published additional content/details.

Review Process:

The OMB now has 90 days to review the proposal. Following OMB review, and pursuant to the Administrative Procedures Act, the proposed rule will be published to provide an opportunity for public comment (for 30-60 days). DHS will then review the commentary/feedback and issue the final rule, which will carry legal authority. DHS is not bound by time constraints to issue the final rule. Given the administration’s agenda, however, we anticipate that it will do so quickly.

What to Do Now:

Because of the legally mandated review and comment period, it will be a minimum of 60 days before the final rule is issued. Therefore, and in the interim, the current regulations remain in effect and H-4 dependent spouses should continue to apply for initial and renewal EAD cards. It is unclear at this time whether the final rule will have a retroactive effect, although we anticipate that it will not and that those with valid EAD cards will be eligible to continue working until those cards expire.

We will continue to monitor the implementation process and will provide updates accordingly.

Please contact any member of the Cohen & Grigsby Immigration Department if you have any questions regarding the above at 412.297.4900. To receive future bulletins and news alerts, please send an e-mail to bulletins@cohenlaw.com.

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