H-4 Work Authorization Under Scrutiny; Delayed Processing Anticipated for H-4 Extensions

In 2015, the DHS promulgated rules that permitted spouses of certain H-1B visa holders to receive work authorization. Under the current rules, an H-4 spouse could may apply for work authorization if his or her H-1B spouse had an approved I-140 but was still awaiting visa availability.

In the wake of the new rule, a lawsuit was filed in federal district court against DHS by tech-industry workers charging that H-4 work authorization unfairly added additional competition in the workforce against U.S. citizens and residents. The district court disagreed with the workers and upheld the rule, but the case is now on appeal with the DC Circuit. DHS recently requested time from the court to consider changes to the rule. While any change, or even revocation of the H-4 work authorization rule by DHS would have to undergo public notice and comment, the recent agency request makes clear that DHS is re-thinking the rule and H-4 spouses need to be prepared that their work authorization may come to an end. The court of appeals is expected to hear the case in October 2017.

Meanwhile, USCIS announced that certain dependent H-4 extensions would not be adjudicated within 15 calendar dates along with a premium processed H-1B extension request. Specifically, USCIS advised that if a principal filed a premium processed H-1B extension at the Nebraska Service Center, his or her spouse’s H-4 extension and work authorization application would not be adjudicated at the same time as the H-1B extension. It is likely that there will be a one- to three-week gap between adjudication of the H-1B and the adjudication of the H-4 extension and EAD card. H-4 spouses who have not received notices by the end of April are advised to follow up with USCIS about the status of the case.