President Biden Withdraws Trump’s H-4 EAD Proposal

President Biden Withdraws Trump’s H-4 EAD Proposal

Written by Taher Kameli & Chathan Vemuri

Among the many changes to Trump’s hardline immigration policies pursued by the Biden administration during his first two weeks in office, President Biden’s latest action has been to withdraw a proposed rule of the Trump administration concerning H-4 EAD holders.[1] Under the proposed rule (which was introduced in 2019[2]), the H-4 EAD program would have been rescinded, preventing spouses of H-1B visa holders from getting paid employment in the U.S.[3]

 

Nevertheless, this has brought great relief to spouses of H-1B visa holders who lived with the fear that their work authorization would be terminated by the Trump administration at any time.[4] Not to mention easing the fears of employers worrying about business disruptions due to potentially losing valuable employees due to this proposal.[5]

 

The US Citizenship and Immigration Services’ (USCIS) H-4 program issues visas to the immediate family members of H-1B workers, such as spouses and children under the age of 21.[6] Under the H-4 program, H-4 visa holders can get an Employment Authorization Document (EAD) that allows them to legally work in the United States.[7] Since 2017, the Trump administration has been pursuing the termination of employment authorization for H-4 visa holders, claiming that it supplanted US workers and drove down wages, particularly at IT outsourcing companies.[1] Currently, there are about 100,000 H-4 EAD holders, most of whom are women from India.[2]

 

As a result, of the previous administration’s criticisms of and plan to rescind the EAD program, these visa holders have been in a state of anxiety over their work status.[3] Moreover, critics have argued that actually enforcing this proposal would have effectively led to thousands of people moving back to India due to lack of work opportunities, thereby depriving the country of people that can contribute to the economy.[4]

 

The Biden administration’s withdrawal of this proposed rule allows H-4 visa holders with EADs to continue with their jobs as they were.[5] More importantly, President Biden’s own immigration reform proposal improves on the current program, in that it “would authorize employment for spouses and children of all H-1B worker,” as opposed to the current EAD rule, which only grants this authorization to spouses of H-1B workers in the Green Card process.[6]

 

However, this is beneficial not just to spouses of H-1B visa holders but also employers of H-4 EAD holders, as they can better compete for high skilled workers with other nations that allow spouses to work.[7]

 

That being said, holders of H-4 EAD authorization visas are not in the clear yet.[8] A court case on this very issue (concerning Save Jobs USA), is still being decided by a lower federal district court.[9] Although it is expected that the court in question will rule favorably on H-4 EADS, the risk of a negative ruling still poses a threat, however minor, to H-4 EAD holders. H-4 EAD holders and their advocates should follow the case for more information. Yet in spite of all that, this has been welcomed as a very positive step for spouses of working arrivals, helping them make their own contribution to and expand the US economy.[1]

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions on the H-4 EAD program or the H-1B program.

[1] Id.

 

 

[1] Maurer, Roy, President Biden Withdraws Proposal to Rescind H-4 Work Authorization, SHRM (Jan. 27, 2021) available at https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/Biden-Withdraws-Proposal-Rescind-H4-Work-Authorization.aspx

[2] Neifach, Michael H., Proposed H-4 EAD Rule Withdrawn for Review, Nat’l Law Rev. (Jan. 28, 2021) available at https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review

[3] Id.

[4] Sangani, Priyanka, Huge Relief for Spouses of H-1B Workers, Biden Nixes Trump Plan to Kill H4 Work Permits, The Economic Times (Upd. Jan. 28, 2021, 11:05 AM IST) available at https://economictimes.indiatimes.com/nri/migrate/huge-relief-for-spouses-of-h1b-workers-biden-nixes-trump-plan-to-kill-h4-work-permits/articleshow/80472932.cms

[5] Neifach, Michael H., Proposed H-4 EAD Rule Withdrawn for Review, Nat’l Law Rev. (Jan. 28, 2021) available at https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review

[6] Id.

[7] Id.

[8] Sangani, Priyanka, Huge Relief for Spouses of H-1B Workers, Biden Nixes Trump Plan to Kill H4 Work Permits, The Economic Times (Upd. Jan. 28, 2021, 11:05 AM IST) available at https://economictimes.indiatimes.com/nri/migrate/huge-relief-for-spouses-of-h1b-workers-biden-nixes-trump-plan-to-kill-h4-work-permits/articleshow/80472932.cms

[9] Id.

[1] Neifach, Michael H., Proposed H-4 EAD Rule Withdrawn for Review, Nat’l Law Rev. (Jan. 28, 2021) available at https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review

[2] Sangani, Priyanka, Huge Relief for Spouses of H-1B Workers, Biden Nixes Trump Plan to Kill H4 Work Permits, The Economic Times (Upd. Jan. 28, 2021, 11:05 AM IST) available at https://economictimes.indiatimes.com/nri/migrate/huge-relief-for-spouses-of-h1b-workers-biden-nixes-trump-plan-to-kill-h4-work-permits/articleshow/80472932.cms

[3] Big Relief for Spouses of H1B Workers as Biden Withdraws Trump-era Plan to Kill H4 Work Permits, Livemint (Jan. 27, 2021, 9:04 PM IST) available at https://www.livemint.com/news/india/big-relief-for-spouses-of-h1b-workers-as-biden-withdraws-trump-era-plan-to-kill-h4-work-permits-11611756611590.html

[4] Neifach, Michael H., Proposed H-4 EAD Rule Withdrawn for Review, Nat’l Law Rev. (Jan. 28, 2021) available at https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review

[5] Id.

[6] Biden Admin Withdraws Move to Rescind Work Authorization for H-1B Spouses, Business Standard (Upd. Jan. 28, 2021, 11:53 IST) available at https://www.business-standard.com/article/international/biden-admin-withdraws-move-to-rescind-work-authorisation-for-h-1b-spouses-121012800545_1.html

[7] H4 Visa EAD, Path2USA (Last Seen on Jan. 28, 2021) available at https://www.path2usa.com/ead-for-h4-visa-overview#:~:text=Employment%20Authorization%20Document%20(EAD)%20for,start%20business%20in%20the%20US.