Update on work authorization for certain H-4 dependents

The Trump administration was due to propose new regulations by the end of February 2018, eliminating the ability of certain H-4 dependents to work.  Although it has not yet issued proposed regulations, there is now a potential timeline for that to occur.  In ongoing litigation over the regulation allowing H-4 employment, the U.S. Court of Appeals for the District of Columbia Circuit ordered the case to be held in abeyance following a motion from the Department of Homeland Security (“DHS”) requesting time to issue a proposed “rescission” regulation in February 2018.  Although DHS did not issue such a regulation in February, the Circuit Court order, issued February 21, 2018, gives the DHS 90 days, or until May 22, 2018, to provide an update on rulemaking.  

With certain exceptions, proposed regulations usually go through a notice and comment period of 30-60 days, or longer, before becoming finalized and taking effect (usually 30 days after becoming final).  Therefore, even if a proposed regulation is issued in or before May 2018, work authorization for current H-4 work permit holders may continue for some time.  Further, DHS has not indicated how the program would be phased out.  If the eventual proposed rule follows the same model as the phase-out of the DACA program (currently on hold in litigation), existing H-4 work permits would not be revoked, and would simply not be renewable or otherwise not available after a specified deadline. 

Update: On February 28, 2018, DHS submitted a status report in the ongoing litigation stating that it intends to publish a proposed rule by June 2018.

© Jewell Stewart & Pratt PC 2018