H-4 EAD Ban Past Deadline, Still Under Government Review

The federal government is still reviewing whether spouses of H-1B holders should be able to work, according to a new court filing by the U.S. Department of Homeland Security.

That program for spouses, known as H-4 EAD, is a frequent target of critics who argue that it takes jobs away from American workers; meanwhile, immigration advocates insist that it’s unfair to prohibit the spouse of an H-1B worker from landing a job and thus contributing to the U.S. economy.

Whatever the arguments, the federal government has seemed intent on ending H-4 EAD. Earlier this year, U.S. Citizenship and Immigration Services (USCIS) suggested that doing so would prove “economically significant,” and ultimately benefit American workers:

“Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.”

Even as it proposes ending the program, the government has also worked to make the H-4 EAD application process far more challenging. As of February 2019, anyone applying for the H-4 EAD needs to undergo biometric screening; by the end of March, a lawsuit filed in U.S. district court alleged that USCIS was processing H-4 and H-4 EAD applications separately from H-1Bs, leading to chaos and lengthening approval times.

In an update to the “Unified Agenda” under the United States Office of Information and Regulatory Affairs, the original deadline for a decision on H-4 EAD elimination was supposed to arrive in “Spring 2019,” which ended June 20. That obviously didn’t happen. Now, in response to a different lawsuit (“Save Jobs USA vs. DHS”), a Department of Justice lawyer says that the elimination of H-4 EAD is still under review, including meetings between the White House’s Office of Information and Regulatory Affairs and “interested parties.” (Hat tip to the Seattle Times for covering the lawsuit.)

Given the typically slow pace of government bureaucracy, it’s anyone’s guess when this H-4 EAD decision will actually arrive. In the meantime, the Trump administration is revamping the H-1B application process, complete with new fees and more intense review of the type of work that H-1B applicants will actually end up doing. Since President Trump’s “Buy American and Hire American” executive order, which he signed two years ago, the government has suspended premium processing of H-1B petitions (before resuming it) and planned to completely change how the H-1B lottery is run—but sweeping reforms haven’t yet taken place.

A recent dataset from the U.S. Department of Labor (DOL) offers a better view of who is hiring H-1B visa candidates—including the so-called “secondary entities,” which is a designation given to companies that use outsourcing to bring in foreign talent. (Using that dataset, we also identified that H-1B visa hires are most often identified as “software engineers” or “software developers” by title, which isn’t exactly the “specialty occupation” that the visa was ostensibly designed for.) This gives us a better idea of how major tech companies are using staffing agencies to pull in even more H-1B workers.