Biden Administration Withdraws Proposal To Revoke H4 EAD

Updated on April 10, 2024

At a Glance

  • H4 EAD (Employment Authorization Document) allows H4 visa holders, dependent spouses of H1B non-immigrants, to legally work in the U.S.
  • To be eligible, the H1B visa holder must meet specific requirements, such as seeking lawful permanent residence.
  • The Trump administration opposed H4 EAD, but after a lawsuit and advocacy, the Biden administration withdrew the proposed rule to rescind it.
  • The processing and renewal timelines have been affected by the pandemic, and proposals for extensions and premium processing are being considered.

2021 has started with some good news – the Biden Administration withdraws proposal to revoke H4 EAD. This is great for people who are H4 spouses of H1B visa holders. So, what exactly happened, and what are the plans of the new administration for the future? This post includes all you need to know about the matter.

What Is H4 EAD?

H4 visa holders who are dependent spouses of H1B non immigrants need a certain document if they want to work in the U.S. legally. This document is the EAD, aka the Employment Authorization Document. An H4 visa holder has to be eligible to apply for an EAD. If they are, then they can apply for it and they’ll have the opportunity to either work or start their own business in the United States.

EAD can only be granted to those eligible for it. So, applicants would qualify for an H4 visa EAD as long as the H1B visa holder meets certain requirements. The requirements include:

  • The H1B visa holder obtained his/her status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Department of Justice Appropriations Authorization Act (AC21). Basically, this act allows an H1B immigrant to seek lawful permanent residence, which then would allow the same person to work and stay in the United States for much longer than the 6-year limit of the status.
  • The H1B visa holder is the main beneficiary of the approved I-140 form, Immigrant Petition for Alien Worker.

Why Did the Trump Administration Oppose H4 EAD

Former President Donald Trump and the Trump administration opposed many things. One of them was the H4 EAD. Their goal was to decrease or even eliminate all the existing immigration norms. As a result, they brought some new regulations to the table. The regulations were meant to either delay, halt or stop the policies altogether.

The H4 EAD and the right to work for people who were eligible visa holders under this category was a regulation that the Obama administration started back in 2015. However, this wasn’t something that would’ve lasted forever under the control of the Trump administration. Therefore, the DHS went with what the Trump administration imposed and they started to work on putting an end to the H4 EAD program. They submitted the regulation proposal to eradicate the EAD for H4 visa holders in February 2019.

They had a certain motivation behind this. In their mind, the H4 EAD workers compromised the local job market, and this was the claim they ended up making. The DHS then came with plans to rescind the work rights of the H4 visa holders.

The H4 EAD Lawsuit

There has been a long-drawn lawsuit involving the H4 EAD program. Save Jobs USA is the one who filed the lawsuit.

As soon as the Trump administration decided they wanted to rescind the H4 EAD program, there was an outrage from people who were eligible and wanted to seek employment in the United States.

At the same time, when the administration started working towards getting rid of the program back in 2019, Kamala Harris, who used to be a Senator at the time, came out with a statement on Twitter.

“This is outrageous and will force immigrant women who are doctors, nurses, scientists, and academics, among others, to abandon their professional careers. I called on DHS last year to withdraw this proposal and will continue to fight this,” she tweeted on the social platform.

In court, there were some challenges from multiple heads of prominent tech companies. A court case was then filed in the district courts with Save Jobs. This was a non-profit organization that wanted to show that there wasn’t any threat to the U.S. workforce if H4 EAD workers were allowed to exist. Then, in May 2020, the DHS came out saying that there isn’t enough proof to show that an H4 visa holder who seeks work in the U.S. would be any threat to the U.S. workforce. OIRA then had to review the final ruling.

Now, Kamala Harris is the U.S. Vice-President under President Joe Biden, and the fight for the rights of H4 EAD people starts showing some results. Those who were looking for employment under this program can finally be happy that the door didn’t close for them.

As soon as the Biden administration got involved in the situation, the proposed rule, which was in the final stages of a roll-out, stayed for 60 days. Then, there were multiple extensions, as well as various policies that were proposed. One of them was the proposal to rescind the employment authorization program. Luckily, the DHS has withdrawn the proposed rule now, and H4 visa holders who qualify for EAD can breathe a sigh of relief.

People who are spouses of H1B visa holders receive an H4 visa, and in certain situations where the H1B worker meets certain requirements, the H4 visa holder can apply for an EAD.

The H4 EAD rule was added back in 2015 by the Obama administration, with the goal to handle the green card backlog that was decades-long. The EAD program has been amazing in this aspect, as people didn’t have to wait for ages to be able to work in the States.

In December 2017, USCIS approved as much as 126,853 EAD applications for H4 visa holders. 93% of the approved applications were for Indian people, whereas 5% were for people from China.

Biden Administration Plans for H4 EAD

At the moment, people who are eligible H4 visa holders can still apply for an EAD. But of course, receiving H4 EAD approvals is a process that has been delayed due to the ongoing pandemic. There are 10-month processing timelines after they had to be exceeded. The mandatory I-9 employment verification for H4 EAD job seekers has also been relaxed because of the pandemic, and the relaxation will last until next month.

Now, H4 EAD visa holders have to apply separately for the extensions, not together with the H1B workers. A biometric requirement was also introduced for H4 visa holders, after this was done together with the H1B worker in the past.

There has been a continuously increasing H4 EAD unemployment in the U.S. due to the COVID-19 pandemic. Their visa status isn’t tied to the employer, so they can get unemployment benefits from their respective states.

Now, there are some proposals for the H4 EAD for the future. Because there are so many processing delays, a lot have appealed that USCIS allows an extension of 180 days as the renewal applications are pending. This is not available anymore, and there has to be an application every time a renewal is necessary. One can apply for renewal only 6 months before the expiration.

Also, there has been a proposal to add premium processing for H4 EAD adjudication. It would be helpful as it can allow for a decision to be taken in 15 business days and avoid potential money losses for eligible H4 EAD petitioners.

Read More

Conclusion

The Biden administration brought some good news to H4 visa holders eligible for EAD application. The proposal to revoke H4 EAD has been withdrawn, and people will have the chance to obtain H4 EAD status in the future.

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Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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