U.S. Supreme Court leaves employment authorization for H-4 spouses of certain H-1B workers intact

After nearly a decade of litigation, the long-running battle over employment authorization for certain H-4 visa holders appears to be over. On October 14, 2025, the U.S. Supreme Court declined to take up Save Jobs USA v. Department of Homeland Security, a case challenging the legality of 8 CFR 214.2(h)(9)(iv). Under this regulation, an H-4 spouse of an H-1B nonimmigrant is eligible to apply for an Employment Authorization Document (EAD) if the H-1B nonimmigrant:

• Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or

• Has been granted an H-1B extension beyond the six-year limit on H-1B time under sections 106(a) or (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21), as amended.

Sections 106(a) and (b) of AC-21 refer to H-1B extensions that are based upon the filing of a PERM labor certification application or Form I-140, immigrant petition for alien worker, at least one year before the end of the H-1B nonimmigrant’s six-year limit, where no final decision to deny the PERM application, I-140, or subsequent application for lawful permanent residence has been made.

The U.S. Supreme Court’s decision to deny certiorari—meaning it refused to hear an appeal from a lower court's decision— in Save Jobs USA leaves in place the D.C. Circuit Court of Appeal’s ruling upholding the Department of Homeland Security (DHS)’s authority to grant this type of employment authorization. While the U.S. Supreme Court’s decision does not constitute a ruling on the merits, it ends the litigation and effectively reaffirms DHS’s authority in promulgating the H-4 EAD regulation.

Although Save Jobs USA directly concerned H-4 spouses, its implications extended beyond that visa category. For example, similar arguments of legal authority to grant employment authorization underpin Optional Practical Training employment authorization for F-1 students. A U.S. Supreme Court ruling against DHS in this case had the potential to disrupt not just the H-4 EAD rule but other programs providing employment authorization to foreign nationals too.

Our prior blog posts regarding H-4 EAD matters can be found here.

Snigdha Ravulapati © Jewell Stewart Pratt Beckerson & Carr PC 2025

USCIS Permanently Increases Automatic Extension Period for Certain EADs

On Friday, December 13, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule (FR) in the Federal Register (89 FR 101208) that will permanently increase the automatic extension period of employment authorization for certain Employment Authorization Document (EAD) applicants who apply for an EAD renewal on a timely basis. The rule affects several EAD applicant classes, including H-4 spouses of certain H-1B nonimmigrants.

The rule is effective on January 10, 2025, 30 days after the date of publication in the Federal Register. In the FR, USCIS determined that after two Temporary Final Rules (TFRs) the current 180-day automatic extension under 8 CFR 274a.13(d) does not provide USCIS enough time to address large spikes in EAD filings, other circumstances that may occur in the future, and increase renewal EAD application processing times. Making the increase permanent helps prevent eligible renewal EAD applicants from losing employment authorization due to USCIS processing delays. USCIS notes that “lapses in employment authorization and EAD validity can result in substantial harm to noncitizens, their families, their employers, and the public at large.”

USCIS has therefore permanently amended existing regulations to increase the automatic extension period to up to 540 days starting the day after the EAD expiration date. The increase will apply to any eligible renewal EAD applicant with an application filed on or after May 4, 2022, and pending on or after May 4, 2022.

USCIS’ announcement of the FR is available on the Newsroom page of its website. A list of affected EAD applicant classes is available on the Automatic EAD Extension page of its website. Jewell Stewart Pratt Beckerson & Carr will watch for developments related to this FR and will post updates here as they occur.

© Jewell Stewart Pratt Beckerson & Carr PC 2024