Eligible H-4 visa holders, specifically spouses of H-1B visa holders, can continue to apply for or renew their EADs without any interruptions in the process.
On November 22, 2024, the U.S. Court of Appeals for the D.C. Circuit rejected a request for a full-court en banc rehearing of its decision upholding the validity of the 2015 H-4 spousal work authorization regulation issued by the Department of Homeland Security (DHS) in Save Jobs USA v. Department of Homeland Security.
The 2015 regulation allows H-4 spouses of H-1B visa holders far enough along in the green card process to apply for and obtain an employment authorization document (EAD) to work in the United States. This lawsuit challenged the regulation's validity, arguing that it was not a reasonable exercise of DHS' authority under the Immigration and Nationality Act (INA).
In August, the D.C. Circuit affirmed a lower court's ruling that DHS' interpretation of the INA was reasonable in granting DHS the authority to extend work eligibility to spouses of H-1B workers. By denying the petition for rehearing, the D.C. Circuit's August ruling stays in effect, maintaining the validity of the H-4 EAD program.
Furthermore, on December 10, 2024, DHS announced a final rule that permanently increases the automatic extension period for certain EAD renewal applicants, including H-4 visa holders, to 540 days while their timely filed EAD application remains pending. This rule aims to help eligible renewal EAD applicants avoid lapses in their employment authorization due to extended EAD renewal application processing times. The final rule will become effective on January 13, 2025, and will apply to eligible applicants with timely filed renewal EAD applications pending on May 4, 2022, or properly filed thereafter.
Takeaways for Employers and H-1B Families
H-4 Work Authorization Remains in Effect
Eligible H-4 visa holders, specifically spouses of H-1B visa holders, can continue to apply for or renew their EADs without any interruptions in the process. The current regulations allow these individuals to extend their work authorization for a maximum period of up to 540 days, providing greater job security and flexibility for H-4 spouses seeking employment.
Compliance Considerations for Employers
Employers who hire individuals holding EADs must remain vigilant about compliance with the Form I-9 verification requirements. It is crucial to regularly check the end dates of these EADs to ensure ongoing eligibility for employment. Employers should set up a system for tracking EAD expiration dates and ensure that they initiate the necessary documentation process well in advance of any expiration.
Anticipating Future Legal Challenges
While the current ruling provides clarity and reassurance for H-4 visa holders and their employers, it is important to recognize that the landscape of immigration law is subject to change. Future legal challenges or modifications to the presidential administration's policies could affect the status and availability of the H-4 EAD program. Stakeholders should remain informed about potential developments and prepare for any changes that may arise in the legal framework surrounding H-1B and H-4 visa programs. If the incoming Trump administration wanted to repeal either regulation discussed here, that could only be accomplished through the standard notice and comment process required for regulations.
For More Information
If you have any questions about this Alert, please contact any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.