On January 25, 2021, regulation that had been proposed under the former administration that would have ended H-4 EADs, was withdrawn from review. This means that certain H-4 spouses should be able to continue to apply for EADs for employment in the U.S.
The proposed regulation had been pending since February 2019. Although the text of the proposed regulation was not made public, the title of the rule made it apparent that, if enacted, it would remove from the regulations the ability of certain H-4 spouses of H-1B nonimmigrants to apply for work authorization. The H-4 work authorization program was first created by regulation in February 2015 under the Obama administration.
It is important to note that litigation remains pending in federal court challenging the DHS final rule promulgated in February 2015. The withdrawal of the rule will likely trigger efforts by the plaintiffs to resume litigation. (Save Jobs v. DHS).
Notably, on January 20, 2021, President Biden announced an immigration bill, the U.S. Citizenship Act of 2021, which would include a provision to provide work authorization to certain spouses of H-1B visa holders, along with addressing related issues like clearing the employment-based immigrant visa backlog, recapturing unused visas, reducing lengthy wait times and eliminating the per-country visa caps. Although the bill has not yet been introduced in Congress and the text has not yet been released, the legislative proposal attempts to codify H-4 work authorization for dependents of H-1B visa holders into the Immigration and Nationality Act (INA).
