Is This the End of Work Permits for H-1B Spouses?

Authored by Diane E. Metzger

Nov 30, 2017

In 2015, many spouses of H-1B visa holders were granted a wish they had long been waiting for—the opportunity to work in the U.S. However, this wish may turn into a bad dream if President Trump decides to overturn the 2015 regulations that granted work authorization (Employment Authorization Documents, or EAD cards) to certain H-4 spouses. According to a recent article published in the San Francisco Chronicle, these H-4 EAD work cards, like the Deferred Action for Childhood Arrivals (DACA) program for so-called “Dreamers,” may also be on the President’s chopping block. 

Challenged by special interest groups since its inception, the H-4 EAD Rule gives certain H-4 visa holders whose spouses have been sponsored for an employment-based green card (and have reached certain milestones in the green card process) the opportunity to apply for temporary work authorization. As the Trump administration systematically reviews – and tightens – many immigration policies, it is increasingly likely that the future of these work cards for H-4 visa holders is threatened.

If the H-4 EAD program is discontinued, what does this mean for employers and H-4 visa holders alike? For employers, this means that at the expiration of your H-4 employee’s current work authorization, the employee may need to be terminated if the employee cannot provide other documentation in accordance with the I-9 rules to evidence the employee’s continued eligibility to work in the U.S. For H-4 visa holders, this could mean the loss of a job, the loss of one spouse’s contribution to the family income, as well as the stress of having one spouse who is not able to fulfill his/her professional goals.

What should H-4 visa holders do? If you are eligible for an H-4 EAD work card, you may consider applying for a work card even if you are not certain you intend to work. Even though any change to the H-4 EAD rule will take some time to implement, if and when the H-4 EAD rule is rescinded, holders of H-4 EAD work cards will not likely automatically have their work authorization revoked. Instead, like we saw with the DACA program, it is more likely that the government will honor H-4 EAD work cards that have already been issued and approved and will simply stop accepting new applications for H-4 EAD work cards or granting extensions of H-4 EAD work cards once the rule is rescinded.

Therefore, if there is any chance an eligible H-4 holder may wish to work in the future, he/she should submit an application for an H-4 EAD work card as soon as possible to ensure that the application will be accepted before any changes to the law take effect. The cost of the application filing fee will be a small price to pay to preserve your chance to work under this program before it may go away.  

If you have any questions about H-4 EADs, H-1B visas or any other immigration matter, please feel free to contact Diane Metzger.

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