In February of this year, USCIS announced that the proposed rule to eliminate the ability of foreign nationals in H-4 status to apply for an Employment Authorization Document (EAD) was sent to the Office of Management and Budget (OMB) for final approval. Five months later, OMB has still not released the proposed rule for publication. The delay likely reflects substantive issues and is more than mere bureaucratic delay. In the meantime, the H-4 EAD is alive and well. The proposed rule must still clear several administrative hurdles before it becomes effective and can be implemented.
Spouses and children of an H-1B nonimmigrant are granted H-4 status to accompany the principal family member in the U.S. Spouses in H-4 status can apply for an EAD if the principal H-1B has an approved immigrant visa petition on his or her behalf and cannot process an application for permanent residence because a visa is not available. Intending immigrants, primarily born in either India or China, must wait for long periods, sometimes as much as 10 years for an immigrant visa. The H-4 EAD provides that spouses in this lengthy waiting period can be granted employment authorization while waiting for the immigrant visa. This rule, finalized in May, 2015, was based upon the premise that it would help attract and retain highly skilled foreign nationals and reduce the adverse impact on the U.S. economy if H-1B individuals left the U.S. The introduction to the rule explained that it would help ease the transition and assimilation of immigrant families caught in lengthy backlogs for an immigrant visa.
We know that there is a great deal of concern about if and when the Administration will revoke the H-4 EAD. Discussions regarding eliminating the H-4 EAD began as long as two years ago when this Administration announced that it agreed with the plaintiffs in a lawsuit challenging the H-4 EAD, and instead of defending the lawsuit, it would publish a new rule revoking the ability of an H-4 spouse to apply for the EAD. That proposal was the rule sent to OMB in February, which is a final step before publication in the Federal Register. When the proposed rule is published, there will be a 60 day notice and comment period for the public to provide comments, including objections and analysis of the anticipated impact of the proposed rule. USCIS can modify or withdraw the proposed rule in response to the comments, but if a final rule is published, the Administrative Procedure Act requires that the agency respond to the comments with an explanation of its final action. This analysis must include the estimated economic impact on the government or economy, and if this impact is more than $100 million, the explanation must include a rational cost-benefit analysis.
The Trump Administration suggests that eliminating the H-4 EAD would give U.S. workers more opportunities to obtain some of the jobs that are occupied by the H-4 population. Yet, research conducted for the American Immigration Lawyers Association (AILA) shows that the proposed regulation would actually have a negative economic impact, contradicting the Administration claims. The study explained:
To explore this issue, in 2018 we surveyed nearly 5,000 H-4 visa holders. We estimate that their loss in employment will cost the U.S. government at least $1.9 billion in lost tax revenue annually, cost state and local governments at least $530 million in lost tax revenue annually, and cost our society at least $5.5 billion, and perhaps as much as $7.5 billion, in lost economic activity per annum.
Our data also suggest that the ostensible benefit of this rule rescission, namely the new jobs that would be made available to U.S. citizens, is at best zero, as the jobs that would be opened up for U.S. citizens would be more than offset by the jobs lost via the closure of businesses currently run by H-4 visa holders.
The study found that the majority of the H-4 population are highly skilled, educated workers in the Science, Technology, Engineering, and Math (STEM) fields with a concentration in the computer, math, statistics, business, finance, management, and health care fields. Although the Trump Administration suggests that eliminating the H-4 EAD would allow U.S. workers the opportunity to secure jobs in those fields, data shows that there are not enough qualified U.S. workers to fill those jobs. It is also important to note that the current unemployment rate is 3.8% and the total number of H-4 spouses with employment authorization is likely less than 50,000 throughout the country.
We anticipate that the public comments will include research studies, such as the cost-benefit analysis commissioned by AILA, and that USCIS will need to review the comments (which are publicly available) and justify the rule with well-reasoned, rational explanations. This is going to be difficult based upon the very small number of individuals granted work authorization, the benefit of those workers to the economy as documented by the economic studies, and the historically low unemployment rate. It is also likely that the comments will note the discriminatory nature of the rule as it targets with surgical precision the right of Indian women to work. We anticipate that if the proposal is published as a final rule, the economic studies and arguments presented in the comments will be the basis of litigation challenging the rule. While we can’t predict the outcome of the anticipated litigation, it is likely the rule will be delayed by the litigation as the Administration struggles to justify the proposed regulation.
In conclusion, we do not expect the rule to be implemented in the near term. In the meantime, foreign nationals and employers relying upon the H-4 EAD should not panic. We anticipate that the EAD will continue to be issued for the foreseeable future (albeit, the processing times have continued to grow) and once issued, will be valid for the full term. It is unlikely that the government will revoke existing EADs even if the rule is published in final form. Although, if the rule is published and becomes effective, H-4 EADs may not be renewed. Until then, we continue to advise clients that the H-4 EAD is still a viable option for work authorization.
Special thanks to Taeylor Stanley for her assistance on this article.