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Proposed H-4 EAD Rescission Rule Withdrawn from Review at OMB

Posted February 1, 2021H-1B

On January 25, 2021 the H-4 EAD Rescission Regulation was withdrawn from review at the Office of Information and Regulatory affairs (OIRA), which was tasked with the review of the Executive Branch regulations. Officially, this regulation is named: H-4 Dependent Spouses from the class of applicants eligible for Employment Authorization. The regulation had been pending review with OIRA since February of 2019. The withdrawal was specifically in response to President Biden’s regulatory freeze memo issued on January 20, 2021. The memo was issued to freeze all rulemaking pending review.

The proposed regulation’s details were never made public. Although, the title of the rule made it obvious that it would propose removing the ability certain H-4 spouses of H-1B nonimmigrants to apply for work authorization. For additional background, the H-4 work authorization program was first created by regulation in February 2015 under the Obama administration.

 

What this means for current H-4 EAD holders

Unfortunately, litigation remains pending in federal court challenging the DHS final rule promulgated in February 2015 that extended eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants. The withdrawal of the pending rule will likely trigger efforts by the plaintiffs to resume litigation again, which would allow the courts to rescind work authorization.

The Biden Administration has indicated it intends to propose legislation that would create a statutory path to work authorization for certain H-4 holders.

We will continue to post updates as soon as further information is received.