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DHS Reaffirms Plan to Rescind H-4 Holder Work Authorization

In a recent court filing, the US Department of Homeland Security (DHS) reaffirmed its intention to rescind the H-4 rule, which provides employment authorization to spouses of certain migrant H-1B visa holders who are legally living in the United States and are on the path to acquiring a green card. The DHS declared that its “intention to proceed” with the rescission rule proposed last year “remains unchanged.”

The H-1B visa is issued to foreign workers in specialty fields like chemistry, technology, and medicine among others, allowing them to work and stay in the country for as long as they remain employed. A number of H-1B holders have spouses and children who are often unable to move to the United States on their own merit. These immediate relatives can follow the H-1B holder to the U.S. through the H4 visa, a dependent and nonimmigrant visa issued by US Citizenship and Immigration Services (USCIS).

However, the DHS announced in December of 2017 that it would be rescinding the H-4 rule in an effort to align itself with the priorities outlined in the “Buy American, Hire American” executive order signed by President Trump in April last year. The DHS was supposed to publish its proposal to rescind the H-4 as soon as February of 2018, but this was since postponed twice.

Reporters questioned USCIS Director L. Francis Cissna regarding the expected publication date of the rule rescission, to which he responded that the “regulation is still being worked on” and that it is “fighting for attention with a number of other regulations, some of them much bigger, probably more important, and not all of them form my own agency within the DHS.”

In a statement, USCIS spokesperson Michael Bars said that the agency is looking into a number of policy and regulatory changes to carry out the Trump administration immigration and economic mandate, which will include a comprehensive review of all employment-based visa programs.

For now, the H-4 visa is still available to applicants and will likely continue to be a viable option for relatives of H-1B holders to follow their loved ones to the U.S. even months after the DHS makes the rescission official. Those eligible for the H-4 visa may proceed with plans to apply for or renew their employment authorization documents. H-4 holders, however, have been advised to seek out other visa options they may be eligible for in order to stay in the country regardless of what happens to the H-4 program.

Rep. Pramila Jayapal (D-WA) and Rep. Mia Lova (R-UT) addressed a bipartisan letter signed by more than 130 members of Congress to DHS Secretary Kirstjen Nielsen, expressing their opposition to the H4 rescission, citing the economic impact of revoking permits to the visa’s holders.

The DHS has yet to announce when it expects to publish a new rule.

If you want to learn more about the H-4 visa program, or need help applying for a visa with your employer under the H-1B program, the Lyttle Law Firm is ready to help. Schedule a consultation with immigration attorney Daniella Lyttle for a full review of your credentials.

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