In 2015, the Department of Homeland Security made some amendments to the I-140 Employment Authorization that had been guiding the entering and hiring process of highly-skilled workers in the United States. The new rule was extremely beneficial to H-1B holders as their spouses, the H-4 holders, could now be hired as employees in the United States. Unfortunately, this privilege might be removed soon.
What is the I-140 Form?
The United States Citizenship and Immigration Services (USCIS) understand that some employers may need specialized expertise which may not be readily available in the U.S. and may require bringing an alien on board, hence the provision for the I-140.
The I-140 Immigrant Petition is used by an employer in need of a foreign worker to petition the USCIS requesting that the worker be granted an employment-based visa to work in the U.S. on a permanent basis.
Formation of the New I-140 EAD Rule
The I-140 EAD rule had been in place for a long time. However, in 2015, the USCIS noticed some obscurities with this particular nonimmigrant visa classification and decided to come up with a new rule that would clarify the grey areas in the application so as to enhance employment opportunities for the beneficiaries under the category, as well as give employers better access to the highly-skilled workers under the visa classifications.
Overview of the I-140 Rule
The I-140 EAD rule that was in place before 2015 did not, among other things, clarify some issues bothering on retention of employment-based immigrant visa petitions; establish priority dates; or address other compelling matters that before then had been casting doubt on the filing process. Apart from the clarifications, the new 2015 rule also gave employment portability to workers, creating a better chance of employment opportunities for employees who have an approved I-140. The new rule, among other things:
- Gave clarification on different policies and processes affecting the adjudication of H-1B petitions This includes granting H-1B extensions beyond the six years authorized at the point of admission. It also determined cap exemptions and touched on H-1B portability as well as licensure requirements and protections for whistleblowers.
- Gave two 10-day grace periods for people in the E-1, E-2, E-3, L-1, and TN nonimmigrant categories to have a considerable amount of time to prepare to start employment when they enter the U.S., to leave the country whenever their current visa status naturally expires, or seek to extend, change, or otherwise maintain lawful status.
- Gave opportunities to certain highly skilled nonimmigrant workers to seek new employment opportunity during each authorized validity period. This means, if their employment comes to an end before the end of their authorized validity period, this will not deter them from pursuing a new job or extension of their nonimmigrant status.
- Gave the opportunity to automatically extend the employment authorization and validity of EADs or I-7666 forms to certain people who apply on time to renew their EADs.
- Eliminated the regulatory provision that required the USCIS to adjudicate the I-756 Application for Employment Authorization, within 90 days of applying. It also eliminated the provision that authorized interim EADs in cases where such adjudications aren’t conducted within 90 days.
The H-4 Employment Authorization
Apart from the above changes, another significant adjustment in the employment-based visa classification made in 2015 was the H-4 Employment Authorization, which allowed H-4 holders to apply for employment authorization if the principle H-1B holder had an approved I-140 filed with the USCIS.
The H-4 EAD rule became effective on May 26, 2015. The result was that H-4 dependent spouses joined the labor market and took up jobs across the country, an opportunity they lacked under the law before the I-140 EAD rule. This development was soon to anger some groups who went to court wanting the I-140 EAD rule to be revoked. They claimed that their jobs and other Americans’ jobs were being taken over by the H-1B workers. This first motion has since given birth to several other issues and has continued to attract the interest of various stakeholders in the United States and overseas.
The Genesis Court Proceedings on H-4 EAD Rule
On Apri 23, 2015, a group of IT workers called Save Jobs USA who claimed their jobs were lost to H-1B workers filed a lawsuit asking that the H-4 EAD be removed. However, the suit was struck out by a Federal District Court because, according to the court, Save Jobs USA failed to convince the court of how H-4 EAD holders directly affect them.
However, Save Jobs USA filed an appeal continuing their claims that the new rule would not protect American workers, and that it will increase the number of American workers in search of jobs. They also claimed that DHS had no authority in the first place to grant EAD to H-4 visa holders without an act of Congress.
2017 – Trump Administration Weighed In
As expected, the election of President Donald Trump brought another dimension into the issue. His administration made its interest known by filing a motion on February 2, 2017, asking for 60-day abeyance (i.e. a temporary suspension of the case) to allow the administration to study the issue. This was followed by another motion by the administration on April 3, 2017, asking that the case remain in abeyance for an additional 180 days so that they could determine their stance on the issue. By June 2017, the Appeal Court granted a stay and asked the two parties, DHS and Save Jobs USA, to come up with a motion by September on how they would like to continue with the case.
September to December 2017
In September 2017, Save Jobs USA filed a motion requesting an oral argument for the case, stating that no action had so far been taken by the DHS. They believed that the delay would continue to affect Americans employees. In response to that, the DHS filed a motion asking the case to be held still in abeyance until December 2017 to allow the DHS and the Trump administration to implement the Buy American Hire American initiative fully. In November 2017, there was a court order that denied the oral argument motion and granted the abeyance motion. However, it directed the two parties to file motions to govern further court proceedings by January 2, 2018.
However, on December 14, 2017, DHS published an official release stating that they were proposing to remove H-4 dependent spouses from the class of eligible aliens for employment authorization. They claimed that they proposed to amend the rule earlier made in 2015 in light of the issuance of Executive Order 13788 Buy American and Hire American. The year 2017 ended with the two parties filing motions and counter-motions and releasing reports on the matter.
2018: The H-4 EAD Court Proceedings Continued
By March 2018, the legislative arm of the country started showing interest in the matter as some Congress members wrote to the DHS asking it not to revoke the H-4 EAD. However, in response to their letter, the DHS replied that their stance on the issue is in line with Trump’s administration initiative.
By May 2018, H-4 EAD removal had officially become a part of the Spring 2018 agenda and it was becoming more evident that the H-4 EAD was formally going to be removed. This was followed by another letter from 130 Congress members asking that the DHS reconsider its stance on the removal of the H-4 EAD. However, that did not change the DHS stance on the removal as DHS/USCIS released a statement in August indicating that the final DHS review of the removal is ongoing and their position on the issue remained the same.
However, the Save Jobs USA, who apparently was not comfortable with the long wait, filed another motion wanting an oral argument very soon because the case was taking too long. According to them, “justice delayed is justice denied.” In response to that, DHS filed a motion asking the case be held as it was making “solid and swift progress in proposing to remove H-4 EAD…”, and will submit the rule to the OMB within the next three months.
H-4 Employment Protection Act
On November 16, 2018, the House of Representatives introduced a new bill called the H-4 Employment Protection Act to stop the Trump administration from removing the H-4 EAD. The sponsors of the bill, Anna Eshoo and Zoe Lofgren, claimed that the U.S. had more to lose than gain by the revocation/removal as that would leave many H-4 beneficiaries no other choice than to go back to their countries and use their skills to benefit their own countries.
However, on December 17, 2018, the U.S. Court of Appeals issued orders to (a) remove the case from abeyance; (b) deny the request for expedition (c) grant the motion for leave to intervene; and (d) grant the request for leave to file a new opening brief. This means all the parties were ordered to file new opening briefs and at the same time, gave the chance for other new interested parties to join the case.
2019 H-4 EAD Rule Latest Updates
2019 might be another long year for the I-140 EAD Rule case as the matter has resumed in the year. Here is the latest 2019 update of H-4 EAD:
On January 16, 2019, Save Jobs USA filed a 77-page document as the replacement for its lawsuit. The group stood firm on its earlier stance that the DHS lacked the authority to grant the EAD to H-4 EAD rule, and that the rule substantially impacts the American workers. On January 18, 2019, the DHS filed a motion asking that the deadlines in the case be held in abeyance. It claimed that the agency lacked funding due to the ongoing Government Shutdown. This motion from the DHS was, however, denied by the court and the briefing order established by the court on December 17, 2018, would stand.
What is My Fate as an H-4 Holder?
In light of the court proceedings, many H-4 holders have been wondering what will become of their jobs while the proceedings last. Many are also wondering if they can apply for new employment.
The answer to these questions and others like them is that as long as the court has not made the final pronouncement on the suit, the status quo would be maintained. This means that you can still apply for an H-4 EAD, apply for employment or retain your job as H-4 holder, and take advantage of every benefit as provided by the H-4 EAD.
How Our H-4 Attorneys Can Help
With the controversies surrounding I-140 EAD rule and other employment-based visas in the United States, it is essential that you are guided by an expert while filing for or about to change to another status under employment visa categories. With the right counsel, you will be able to make the best choice for yourself.
At Immi-USA, we have expert attorneys who are highly experienced in the I-140 EAD process. They can provide answers to any questions bothering you, and guide you through any employment authorization process of your choice. You can schedule an appointment with our expert immigration attorneys by just simply filling out our contact form.