In February 2015 U.S. Department of Homeland Security implemented a new rule to allow certain H-4 dependent spouses of H-1B workers to apply for work authorization. The authorization is called an Employment Authorization Document, or EAD for short. This was a significant and welcome development for many spouses, who often wanted to work but faced a backlog of a decade or more before they could become permanent residents and thereby become authorized to work.
The primary beneficiaries of the H-4 EAD rule have been Indian citizens, who, because of an outdated quota system, might need to wait ten or twenty years to receive a green card (i.e. permanent residency) as so-called derivative applicants to the green card sponsorship by their spouses’ employers. In other words, the H-1B worker comes to the U.S. to work for a certain employer. The employer then sponsors the employee for a green card. The employee’s spouse and children under age 21 join the process as derivative applicants. While waiting for that process to play out, the H-4 spouse can get a work permit under the 2015 rule.
Soon after the rule went into effect, a group of tech workers initiated federal court litigation seeking to invalidate it. The curious fact of the litigation is that USCIS reported that there were 104,750 H-4 spouses who received EADs. In a country of more than 330 million with employers constantly struggling to find workers, this small number begs the question: What’s the problem? Would it be better to have an H-4 spouse who wants to work sitting at home ruminating about how frustrating it is to be stuck waiting on a green card for ten or twenty years, or would it make sense to allow that person to contribute to the economy, not to mention pay taxes? It’s a rhetorical question.
On August 2, 2024 the U.S. Court of Appeals for the District of Columbia issued a cursory opinion upholding the H-4 EAD rule. The court outlined the key facts and statutory authority and referenced precent decisions. Reading between the lines, the Court essentially said, “Why are you wasting our time with this groundless lawsuit?” Indeed.
Before we celebrate with abandon, we need to recall the prior administration’s 2018 regulatory agenda. Among the immigration provisions was a line item to scrap the H-4 EAD rule. Just as one administration can implement new regulations, another one can withdraw or revise them. For at least the near term, however, the H-4 EAD rule remains in effect.