H-1B and H-4 EADs Face Possibility Of Major Changes Under Trump Administration

Monique Van Stiphout Sr Attorney Maggio Kattar
Monday, January 8, 2018 - 8:00pm
Monique Van Stiphout, Senior Associate

**** January 9, 2018 Update:  After the speculation below of  possible changes to the  H-1B and H-4 visa programs,  USCIS has reportedly stated  that USCIS "is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing interpretation of Section 104 C of the American Competitiveness in the 21st Century Act (AC21) statute that states that USCIS may grant the extensions" .  Thus far, there have been no reported statements addressing speculation regarding changes to the H-4 EAD program that allows for work authorization for spouses of certain  H-1B visa holders.  As stated in our initial article below, it is important to remember that the administration must follow a required regulatory process in order to implement any changes and it is expected that it will take many months (at a minimum) following the issuance of the proposed regulation for any changes to be finalized and become effective.

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It has been reported that the Trump administration is considering some major regulatory changes as part of its response to the Buy American, Hire American executive order.  Two changes which are causing concern among H-1B visa holders and their employers are the proposal to change the availability of H1-B extensions beyond the initial 6 years of H-1B eligibility, and the proposal to eliminate Employment Authorization for the H-4 spouses of certain H-1B visa holders.  These are discussed below:

H-1B Extensions beyond 6 years:

Under current law, individuals are limited to a total of six (6) years in H-1B status, and generally, after reaching this 6 year limit, are required to depart the US for at least one year before they can again apply for H-1B status.  The American Competitiveness of the Twenty-First Century Act (AC21), provided two major exceptions to this limitation for individuals in the process of applying for employment based Permanent Resident (“Green Card”) status, but who are not able to achieve Permanent Resident status due to per country limitations on the issuance of Permanent Resident Status, as follows:

  1. Section 104(c):  This section authorizes USCIS to exercise its discretion to extend an individual’s status in three-year increments if they have an approved Immigrant Petition (I140) and submit a valid H-1B petition;
  2. Section 106(a):  This section requires USCIS to extend an individual’s status in one-year increments (upon the filing of a valid petition requesting extension of status), if: a) 365 days have passed since the filing of a PERM application on behalf of the individual; or b) 365 days have passed since the filing of an Immigrant Petition on behalf of the individual.

It is the first exception, authorizing the discretionary approval of extensions in 3 year increments, that the administration is considering changing.  It is important to note that the recent announcement only indicates that the administration is considering changes to the regulations, not that changes have already been made.  The administration must follow a required regulatory process in order to implement any changes, which must include the following: a. the issuance of a proposed rule; b. 30 to 60 days (or longer) of public comment; c. review of the public comments; and d. issuance of a final rule with an effective date (usually 60 to 90 days after the final rule is published).  Thus, it is expected that it will take many months (at a minimum) following the issuance of the proposed regulation for any changes to be finalized and become effective. 

It is also important to note that any such proposed regulations would have to provide guidance as to what would be required for USCIS to exercise its discretion and allow a three-year H-1B extension.  The proposed regulations, when issued, will provide a much better sense to all affected as to what this might look like.  In the absence of proposed regulations, it is too soon to speculate as to the impact that any new regulations might have.  While we understand that there is concern, without further indication as to the exact form any changes to the regulations might take, it is not possible to make business or personal plans around such potential changes.

Finally, and most importantly, it is important to remember that, even if there are changes that severely limit the availability of three-year H-1B extensions, in many cases individuals may continue to qualify for one-year extensions of H1B status until such time as a final decision is made on their overall Green Card application.  This is especially true for individuals for whom the Green Card application process started a long time ago, and who have been waiting for their priority date to become current.

Termination of H-4 EAD program

As with the H-1B extensions above, the inclusion of the elimination of the H-4 EAD program on the administration’s regulatory agenda is only a preliminary indication that the administration is considering issuing regulations to end this program.  As noted above, the administration must go through the required regulatory process before any changes can be implemented.  If and when proposed regulations are published, there will be an opportunity for public comment on the regulations, which will give any one potentially impacted by the proposed change the opportunity to provide comments to USCIS.  It is also only at this time that immigration attorneys will be able to begin to provide advice around the proposed regulations.  Once all comments are received and reviewed, a final regulation will be issued.  Until such time as this occurs, the H-4 EAD remains available to spouses of qualifying H-1B visa holders