Immigrationgirl.com readers know that DHS has announced its intentions in the fall Unified Agenda. The Agenda indicates that DHS plans to propose a new regulation in February 2018 to rescind the H-4 EAD rule. Now that February is here, I’ve received a few calls already today asking if the H-4 EAD is still available. The short answer is YES.
As of today, no proposed rule has been published. Further, there is no proposed rule under preliminary review by the Office of Management and Budget yet. This is a required first step for any agency regulation based on a 1993 Presidential Executive Order. The Office of Management and Budget does a coordinated review of agency rulemaking to ensure that proposed regulations are consistent with applicable law and do not conflict with the policies of other agencies. No proposal can be published in the Federal Register until the OMB has completed its review.
Regulatory processes are often delayed, so even though the Regulatory Agenda indicated February 2018, it is very possible that it will not be proposed this month, given the fact that it has not been submitted to OMB for the preliminary review.
No new action has been taken by the Court of Appeals in the pending litigation. As of December 22, 2017 DHS requested the court to hold the case in abeyance one more time until a new regulation can be implemented. Save Jobs asked the court to issue a decision on the merits of the case, ie Save Jobs wants the court to decide whether DHS had the authority in the first place to permit H-4 holders to work without Congress specifically allowing it. The court has not ruled on the competing motions, but I would expect the court to grant another abeyance of the case since a new regulation rescinding the H-4 EAD would make the whole case moot.
You can continue to file applications for H-4 EADs and you can continue to work pursuant to valid H-4 EADs.