DHS Adds Immigration Rule to Agenda That Stops H-1B Spouses From Working

The Trump administration placed on its regulatory agenda an immigration rule that would end the ability of spouses of H-1B visa holders to work in the United States.

Since 2015, a Department of Homeland Security rule has allowed the spouses of H-1B professionals with pending green card applications to obtain H-4 employment authorization documents, or EADs. The rule was intended to increase the competitiveness of U.S. companies in attracting talent, since Canada and other countries allow spouses of high-skilled foreign nationals to work.

{snip}

At the end of last month, Trump officials added to the regulatory agenda a rule titled, “Removing H-4 Dependent Spouses From the Classes of Noncitizens Eligible for Employment Authorization.” The regulatory summary did not list an expected date for publishing the rule.

“DHS is proposing to remove from its regulations certain H-4 dependent spouses of H-1B nonimmigrant workers as a class of aliens eligible to request employment authorization under the (c)(26) category,” according to a regulatory abstract. “This proposal would reverse the changes made in the 2015 final rule, ‘Employment Authorization for Certain H-4 Dependent Spouses,’ and restore DHS’s long-standing policy of not extending eligibility to request employment authorization to H-4 dependent spouses.”

According to National Foundation for American Policy calculations of government data, between FY 2023 and FY 2025, USCIS approved 228,147 initial and renewal applications for H-4 EADs. USCIS typically approves H-4 employment authorization documents for three years. The number does not represent an exact count of the H-4 EAD population, since some people may have received a green card or left the country after receiving approval.

{snip}

The rule would not be the administration’s first effort to restrict EADs. Jonathan Wasden of Wasden Law filed a lawsuit in January attempting to overturn an interim final rule that ended the automatic extension of employment authorization documents. Wasden also sought relief for clients due to unreasonable delays.

“The government has opted to moot these cases out by delivering EAD cards instead of fighting it out in court,” Wasden said in an interview. “This is a great result for individuals but makes it hard to get general relief for the broader H-4 community. It’s sad, but to avoid job disruption, people really have to start advocating for themselves early on. Expedite requests and congressional inquiries aren’t moving the dial, but the Federal court process is.”

{snip}