DHS Proposes Termination of H-4 Work Authorization

February 28, 2019 | Henry M. Mascia | Employment & Labor | Immigration

On February 20, 2019, The Department of Homeland Security (DHS) sent the Office of Management and Budget a proposed rule that would eliminate the work authorization for those present on an H-4 visa. The proposed termination of work authorization has the potential to drastically affect the companies that employ H-4 workers.

Proactive employers can avoid a disruption of their workforce by seeking an H-1B visa for current H-4 workers. They may do so by filing an H-1B visa petition during the first week of April 2019. Approved petitions will change the H-4 worker’s status to H-1B status, which comes with its own work authorization.

DHS grants an H-4 visa to the spouses of foreign nationals entering the United States with an H-1B visa. The overwhelming majority of H-4 visa holders are highly educated women; a disproportionate number are from India.

For many years, foreign nationals with an H-4 visa were allowed to enter the United States, but were not authorized to work in the U.S. In 2015, DHS changed that policy by permitting foreign nationals with an H-4 visa to obtain authorization to work in the United States by filing Form I-765 requesting an Employment Authorization Document (EAD).

Before the proposed rule can take effect, DHS must follow several procedures, such as accepting public comments and publishing a final rule. Once the rule takes effect, an H-4 visa holder who wanted to continue to work would have to change to a status that carries its own independent work authorization, such as H-1B status.

Experts expect that a final rule eliminating H-4 work authorization could come as early as July 2019, too late to enter the H-1B lottery, which will have taken place in April 2019. H-4 visa holders would have to wait to enter the H-1B lottery in April 2020. Even if selected, the foreign national would not be eligible to work until October 2020, rendering them ineligible to work for over a year.

Employers who wish to protect their H-4 employees from a lapse in work authorization should contact their attorney immediately to discuss available options.

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