Proposed Rule to End H-4 EAD Program Delayed Until At Least Spring 2020

On September 16, 2019, representatives from the U.S. Department of Justice (DOJ) submitted a filing to the U.S. Court of Appeals for the District of Columbia Circuit, indicating that the U.S. Department of Homeland Security (DHS) is still actively working on a rule to terminate the H-4 EAD program, but that it would not be issued before spring 2020. This submission to the court is related to a lawsuit challenging the legality of the H-4 EAD program.

Background on Court Case

The H-4 EAD program went into effect under President Obama on May 26, 2015. Shortly before the effective date, Save Jobs USA, a group of former employees of Southern California Edison, filed a lawsuit against the DHS to try to block the regulation. As expected, the trial court dismissed the lawsuit.

At around the same time President Trump was sworn into office in January 2017, Save Jobs USA appealed the case to the U.S. Court of Appeals for the District of Columbia Circuit. Under President Trump, the DOJ has taken the position before the court that there is no need to adjudicate the case on the merits because the Trump Administration will eventually issue a rule to end the H-4 EAD program. Save Jobs USA, on the other hand, argues that the rulemaking process is taking too long, so the court should proceed with hearing the case.

Conclusion

For the time being, the H-4 EAD program remains in effect. Even if the proposed rule to terminate the program is issued in the spring, it will still take months before the final rule could potentially be issued and enforced. Moreover, the DOJ notes that spring 2020 is “the earliest possible publication date,” and that this timeframe is “aspirational.” While it is unfortunate that the Trump Administration continues to move toward ending this much needed benefit, it is encouraging to note that the H-4 EAD program will likely remain in place for the foreseeable future.

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