As I’m sure you all are aware, President Trump announced yesterday that the DACA program for certain undocumented individuals brought to the US as children is being terminated. Now, one of the top questions I hear is “What does this mean for the H-4 EAD?”
Some background: A little over two years ago, USCIS announced a new rule that would allow certain H-4 visa holders the opportunity to work. A month before the rule was set to take effect, Save Jobs USA filed a lawsuit seeking to stop the rule from being implemented. The plaintiff in the lawsuit is a group of computer workers who were formerly employed at Southern California Edison.
Save Jobs argued that the H-4 EAD should have been issued through legislation, not through regulation and therefore the rule should be vacated. The group further alleges that they were displaced by H-1B workers and will now face even more competition from H-4 EAD holders.
The court granted summary judgement in favor of the government, finding that only a subset of H-4 visa holders would be eligible to obtain EADs and Save Jobs USA did not establish that its members would be harmed by having to compete against a subset of H-4 visa holders for jobs. In addition, the court went on to state that Congress delegated authority to DHS to set rules regarding employment authorization and DHS was reasonable in using that authority to grant EADs to some H-4 visa holders. The case was closed at the district court level on September 28, 2016.
Save Jobs USA immediately filed an appeal to the United States Court of Appeals for the District of Columbia Circuit…and then the election happened.
First, the government requested an extra 60 days to respond to the appeal to allow “incoming leadership personnel adequate time to consider the issues.”
Then, the government asked that the case be held in abeyance for another 180 days to give DHS time to reconsider the H-4 Rule and decide whether issuance of a notice of proposed rulemaking relating to it is appropriate. The government indicated that it would update the court every 60 days concerning the Department’s review and inform the Court promptly should it determine whether a new rulemaking is or is not appropriate before 180 days elapses.
The court granted the stay on June 23, 2017 and directed the parties to file further motions on how they wish to proceed by September 27, 2017. At this time, we do not know whether the government has provided updates to the court regarding their progress in making a decision about what they want to do with the H-4 EAD. We’ll have to wait and see what both parties file at the end of the month.
I see many speculating that because the DACA program is ending, the H-4 EAD program will also be eliminated. But, there are important differences between DACA and the H-4 EAD:
The DACA decision was (in my opinion) a direct result of:
1. the president’s campaign promises
2. threatened lawsuit by multiple States who were previously successful in blocking DAPA
3. executive action by a previous administration
By contrast, the H-4 EAD:
1. has never been specifically mentioned by Trump as far as I am aware
2. is in a lawsuit by one group of workers (who were already found to be not harmed by the H-4 EAD in the lower court’s decision), not multiple States
3. went through the full notice and comment regulatory process, not an executive order
and most importantly, the Trump Administration’s Unified Agenda was finally updated and there is no mention of plans for regulatory changes to the H-4 EAD (or STEM OPT) on the agenda.
The Unified Agenda provides an updated report on the actions administrative agencies plan to issue in the near and long term. Released by the Office of Information and Regulatory Affairs, the Agenda provides information and transparency about regulatory actions proposed by agencies.
What is on USCIS’ radar for regulatory changes?
New Classification for Victims of Criminal Activity; Eligibility for the U Nonimmigrant Status 1615-AA67
Requirements for Filing Motions and Administrative Appeals 1615-AB98
EB-5 Immigrant Investor Regional Center Program 1615-AC11
Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for T Nonimmigrant Status 1615-AA59
International Entrepreneur 1615-AC04
EB-5 Immigrant Investor Program Modernization 1615-AC07
Exercise of Time-Limited Authority to Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program 1615-AC12
And, remember, Trump did NOT immediately end DACA. Those that have existing approvals remain valid. Those that are expiring before March are allowed to file renewals. There is a six-month transition to give Congress time to pass new legislation, just like the court did with the STEM OPT.