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

DHS Publishes Proposed Rule to End Employment Authorization for Certain H-4 Spouses

On February 25, 2015, the Department of Homeland Security (DHS) published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status.

Now, DHS has published a proposed rule to remove these H-4 dependent spouses from the class of aliens eligible for employment authorization. This would appear to reverse the 2015 H-4 EAD rule, and appears consistent with the Trump Administration’s aims under Executive Order 13788 (“Buy American and Hire American”). No details about how the reversal will be implemented have been shared at this stage.

Jewell Stewart & Pratt is monitoring developments and will post more information here when it becomes available. The U.S. Citizenship & Immigration Services’ Buy American and Hire American webpage can be found here. Our prior blog posts related to the beginning of the H-4 EAD rule can be found here, here, and here.

© Jewell Stewart & Pratt PC 2017

UPDATE: USCIS publishes information regarding H-4 EAD procedure

News Release from Jewell & Associates, PC

We previously posted here about USCIS's announcement that, starting May 26, 2015, it would begin accepting applications for employment authorization from certain H-4 spouses of H-1B nonimmigrants who are in the employment-based lawful permanent residence (green card) process. USCIS has now published the following information to help prospective applicants:

• An Employment Authorization for Certain H-4 Dependent Spouses web page; and

• A list of Frequently Asked Questions, and answers to those questions.

Under the rule, eligible applicants will be required to file Form I-765, Application for Employment Authorization, with the required $380 fee and the documents establishing their eligibility. USCIS usually adjudicates Form I-765 within 90 days; if employment authorization is approved, the applicant will receive an EAD. Once the H-4 spouse receives an EAD, he or she may begin working in the United States.

Applications will not be accepted by USCIS before Tuesday, May 26, 2015.

© Jewell & Associates, PC 2015

DHS to propose allowing work authorization for spouses of certain H-1B workers, and more

News Release from Jewell & Associates, PC

The Department of Homeland Security has announced that it will publish a proposed rule that would:

1. Allow work authorization for H-4 spouses of certain H-1B workers in the permanent residence (green card) process based on employment. For the H-4 spouse to qualify for work authorization, the H-1B worker would have to (a) be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or (b) have been granted an extension of H-1B status beyond the usual six-year limit, under the provisions of AC21 (the American Competitiveness in the Twenty-first Century Act of 2000, as amended).

2. Clarify that Australian E-3 workers and Singaporean and Chilean H-1B1 workers do not need EAD cards to work for the sponsoring employer; also, allow Australian E-3s,  Singaporean and Chilean H-1B1s, and Northern Marianas CW-1s to continue working for up to 240 days during the pendency of an E-3, H-1B 1, or CW-1 extension application filed with USCIS. The rule would add E-3 and H-1B1 nonimmigrant workers to the list of classes of aliens authorized for employment “incident to status” with a specific employer, meaning that the E-3 or H-1B status itself carries work authorization, without the necessity of a separate Employment Authorization Document (EAD card).  The rule would also bring E-3, H-1B1, and CW-1 nonimmigrant workers into line with H-1Bs and other work classifications in allowing up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.

3. Expand the list of evidentiary criteria for EB-1 outstanding professors and researchers to include “other comparable evidence.” This would add “other comparable evidence” to the list of types of evidence supporting an EB-1 immigrant petition for an “outstanding professor or researcher,” i.e., an EB-1B petition.  EB-1A petitions, for persons of “extraordinary ability,” already permit the use of “other comparable evidence.”

Further information can be found in the White House press release.

By Phyllis Jewell and Christopher Beckerson. © Jewell & Associates, PC 2014