- posted: Mar. 01, 2019
These days, we receive multiple queries from educated immigrants and their spouses who are extremely worried about the fate of H-4 EAD lawsuit; there is no doubt, the H-4 EAD Rule is shrouded with uncertainty at present.
For information sake, it may be better to clarify what H-4 EAD Rule is. H-4 is an immigration status accorded to the spouses of H-1B nonimmigrants who until 2015 were not entitled to work in the United States. The scenario changed on May 26, 2015, when USCIS published the final rule (referred to as H-4 EAD Rule) that in its pertinent part states “…This final rule amends Department of Homeland Security (“DHS” or “Department”) regulations by 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. Such H-1B nonimmigrants must be the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140), or have been granted H-1B status in the United States under the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act.”
The purpose of the Regulatory action was explained in the executive summary that explained that the lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardships for the families of H-1B nonimmigrants. Such hardships may increase, the longer these families remain in the United States. In many cases, H-1B nonimmigrants and their families who wish to acquire Lawful Permanent Resident (LPR) status in the United States must wait many years for employment-based immigrant visas to become available. These waiting periods increase the disincentives for H-1B nonimmigrants to pursue LPR status and thus increase the difficulties that U.S. employers have in retaining highly educated and highly skilled nonimmigrant workers. These difficulties can be particularly acute in cases where an H-1B nonimmigrant's family is experiencing economic strain or other stresses resulting from the H-4 dependent spouse's inability to seek employment in the United States. There couldn’t have been a better justification in its enactment.
Before even the H4 Visa EAD Rule was enacted, a lawsuit was filed by ‘Save Jobs USA’ (a group of American citizens who were replaced by H-1B workers at Southern California Edison) against Department of Homeland Security (DHS) on April 23, 2015 within just over a month before the rule came into effect. The lawsuit was initially dismissed by a Federal district court in September 2016 for failure to establish that H4 EAD holders will have an adverse effect on petitioners. On an appeal to the United States Court of Appeal for the DC Circuit, the appellants claimed that the H-4 EAD Rule does not protect US workers and will adversely affect the pool of workers applying for jobs and that DHS lacks authority to grant EADs to H-4 visa holders.
The authority vested in the Secretary of Homeland Security (Secretary) for this regulatory amendment can be found in section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. In addition, section 274A (h) (3) (B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary's authority to extend employment to noncitizens in the United States.
As we stand today, after more than 3 years of intense legal battle between the parties, DHS has finally submitted the revoke rules to Office of Management and Budget (OMB) on Feb 20, 2019 and marked it as ‘Economically Significant‘ which means that OMB may wrap up comments period within 30 days.
While the litigation is pending in the court, it doesn’t affect the current rule and H-4 holders can continue to apply for H4 EAD and those who have H-4 EADs approved can continue to work until the validity date.
The common question confronting immigrants and their spouses is what will happen in the event H4 EAD rule removal is implemented. It is important to note that as it stands today, you can apply for H4 EAD and those who currently have EAD can continue to work. The controversial rule is still not enacted. In the interim, we would recommend that current H4 EAD holders should plan for backup options like H1B. If you have job offers from employers who are ready to process H1B petitions on your behalf, you can take advantage of H1B Cap 2020 that is around the corner and will commence on April 1, 2019. As the time is less, you must act fast. Since the year 2014, USCIS has received enough number of petitions in the first 5 business days of April. USCIS stops receiving petitions after 5th business day of April. All petitions received until 5th business day of April are then subjected to “computer-generated random selection processes” (lottery).
Historically, USCIS has conducted lottery since the year 2014. USCIS received about 190,098 applications for H1B FY 2019 Cap. This tells that USCIS received about 2.24 times the actual cap subject number of about 85,000 numbers (65,000 Regular Cap + 20,000 Masters Cap). Each petition was then tagged with a serial number and used that to run the random algorithm. The random selection/ lottery was first applied to Masters Cap petitions and the petitions that were not selected in Masters Cap, were then added to the general pool and random algorithm was run on the same for general cap.
Therefore, in order to take advantage of the upcoming Cap, it is all the more important to contact an able immigration practitioner to start preparations for applying under H1B Cap. Those who will miss the boat this time will have to wait until April 2021.There are no secrets to success. It is the result of early preparation and hard work that is also the best tool to ward off the anxiety arising out of anything that is shrouded in mystery.
Vijay Bhagwati, Esq.
March 4, 2019
