What’s Going on with H4 EAD
In May 2015, during Obama-era, USCIS published final rule to provide Employment Authorization (H4-EAD) to certain H-4 visa holders who are seeking lawful permanent status (Approved I-140). This work authorization came as big relief to so many H-1B nonimmigrant families, who are waiting many years for their LPR status and experiencing financial stress and mental health issues because of the inability to seek employment on H-4 status.
On Apr 23, 2015 SaveJobsUSA, an advocacy group fighting for displaced US born Information Technology workers, sued Obama Administration at the DC District of United States District Court in order to seek a preliminary injunction but this case was dismissed by the Judge and the court denied the motion for preliminary injunction. The H-4 EAD rule went info effect on May 26, 2015.
On Sep 30, 2016 Save Jobs USA filed appeal of the decision before the United States Court of Appeals for the District of Columbia Circuit to challenge the Executive’s legal authority to issue Employment Authorization for certain H-4 Dependent spouses. Though the case is between SaveJobsUSA vs DHS, In May 2017 Immigration Voice filed motion to intervene in the case and the court granted permission to do so.
On Apr 18, 2017, President Trump signed Buy American and Hire American Executive Order. In Dec 2017, Department of Homeland Security(DHS) proposed a regulation to repeal H4-EAD work permits given to certain H-4 dependent spouses. In Feb 2019, USCIS issued a proposal to remove H-4 EAD. As per DHS Rule Proposal…
back to menu ↑On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rule-making to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201904&RIN=1615-AC15
H4 EAD Current Status – As of Aug 05, 2019
As of Today, there are NO changes to H-4 EAD Program so you can apply and work on H-4 EAD.
USCIS Rule Repeal Process is Pending with Office of Management & Budget (OMB) since Feb 2019 and no further updates from OMB on this. Once OMB approves it, the proposed rule will be published for public comments. After reviewing all the comments, USCIS will create an interim or final rule to submit back to OMB for review and decision. Once OMB approves this final version, USCIS will publish a final rule in federal register with Effective Date.
SavesJobsUSA vs DHS court case is also pending and there is no decision on this case as well. Next oral argument is scheduled on Sep 27, 2019.
back to menu ↑H4 EAD Processing Delays – Lawsuits Against USCIS
In Mar 2019, USCIS revised Form I-539 used by Spouses and Children of H-1B and L-1 visa holders to Extend/Change Nonimmigrant Status. Effective Mar 22, 2019 USCIS was accepting only revised Form I-539 and as per this revised Form Applicants are required to appear in person at USCIS center to have their biometrics taken (fingerprints, photo and/or digital signature).
This policy change caused H-4 EAD processing delays as USCIS won’t approve H-4 EAD application without a valid H-4 and the H-4 processing times are increased significantly because of the new biometric requirements. Before this change, USCIS used to simultaneously adjudicate H-4 + H-4 EAD applications along with H-1B petition.
Because of these increased delays, many H-4 EAD holders are at the risk of losing jobs, health insurance, driver licenses, and financial impact. Few of them filed a lawsuit against USCIS and are successful at getting their H-4 and H-4 EAD approvals.
back to menu ↑A person suffering legal wrong because of agency action, or adversely affected or ag- grieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
https://www.govinfo.gov/content/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partI-chap7-sec702.htm
Granted H4 EAD Count by Country of Birth
As per USCIS Official Data, Indians received a whopping 91% of all granted applications for employment authorization for H-4 holders from 2015 to 2019. Below table shows the count of all granted H-4 EAD’s from 2015 to 2019 (as of Mar 29, 2019) based on Country of Birth.
| Country of Birth | Initial Filings | Renewals |
| India | 110,649 | 69,667 |
| China | 7,345 | 2,619 |
| Philippines | 651 | 238 |
| Others | 1869 | 535 |
| Grant Total | 120,514 | 73,059 |
Frequently Asked Questions
Yes. As of now, there are no changes to H-4 EAD policy and you can apply and work on H-4 EAD.
Yes. Please note that under this scenario, USCIS won’t adjudicate H-4 EAD until H-1B status and H-4 nonimmigrant status eligibility is determined. Because of the new in person appearance requirement for H-4 visa applicants there are H-4 EAD delays.
