Last month, DHS submitted its report to the court on the status of planned regulations to rescind the H-4 EAD. At that time, DHS confirmed that the review of the proposed rule is ongoing, and senior levels of the Department’s leadership are actively considering the terms . On September 11, the U.S. workers who brought the lawsuit had enough of waiting and filed a motion with the court requesting to remove the abeyance and move forward with the case. Remember, the court has basically had this case on hold since the Trump administration came into office. Save Jobs USA pointed out that the case has now been delayed for a year and a half and still no proposed rule has been submitted to the OMB.
Save Jobs argued that “[j]ustice delayed is justice denied” and the longer the H-4 Rule remains in effect, the longer Save Jobs USA members and other American workers will “suffer injury from
the presence of foreign competitors in their job market.” They also pointed to the vagueness of DHS’ previously submitted reports regarding the status of the proposed regulation and exactly what DHS plans to propose. Because DHS has yet to make good on its promise to propose a new regulation, Save Jobs wanted the court to decide the case, specifically the question of whether DHS has the authority to permit employment without Congress.
DHS has now filed its response in opposition. DHS states that its senior leadership reviewed the proposed rule and returned it to USCIS this month for revisions. When the necessary revisions are
incorporated, USCIS will return the proposed rule to DHS for final clearance and submission to OMB.
“DHS anticipates that the rule will be submitted to OMB within three months.”
DHS claims in its filing that it is making “solid and swift progress” in proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.
Regardless of the pending motion and DHS’ response in opposition, the H-4 EAD remains available and USCIS continues to approve them. You can continue to file unless and until a final regulation actually takes effect or a court says otherwise.