By Jason Burritt and Jake Campbell

Seyfarth Synopsis: The Office of Information and Regulatory Affairs within the Office of Management and Budget announced that the long-pending rule to rescind work authorization for certain H-4 holders has been withdrawn. The withdrawal means that H-4 holders whose spouses have reached certain steps within the employment-based green card process can continue to file for Employment Authorization Documents (EADs).

After a multiple-year undertaking to rescind work authorization for certain H-4 spouses, the United States Citizenship & Immigration Services (USCIS) confirmed on January 25, 2021 that it has officially withdrawn the proposed rule that sought to rescind this class of work authorization. The regulation promulgated in 2015 allows an H-4 holder to file for a work permit (EAD) if the H-1B spouse is the beneficiary of an approved I-140 petition and cannot adjust status due to per-country limitations or if the H-1B spouse has been granted a post-sixth year H-1B extension of status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act of 2000.

In December 2017, the Trump administration announced in its regulatory agenda that it sought to withdraw the regulation promulgated in 2015 under the Obama administration. In February 2019, the Trump administration published a rule to rescind the H-4 EAD regulation. The regulation has remained pending with the Office of Management and Budget, which reviews proposed rules for impact on the economy (among other reasons), and was never issued as a final regulation.

New or initial H-4 EAD applications can be concurrently filed with an H-4 nonimmigrant change of status or extension of stay application or, alternatively, as an individual application, provided eligibility requirements are met. H-4 EAD renewal applications can be filed up to six months before the EAD expiration.