On February 22, 2019, the Department of Homeland Security submited to the White House, its proposed rule for the termination of the regulation which provides for the Employment Authorization Document for H4 spouses of H-1B workers who have approved I-140 petitions, but are prevented from concluding their green card cases due to the per-country limitation. The provisions of that proposed rule have not been released, so it is not yet known how DHS will address those persons who currently hold unexpired H4 EAD's. Also, it is expected that the rule will likely be challenged in federal court litigation, and it is unknown whether implementation of the rule may be stayed or enjoined by a federal court. In any event, many persons who hold the H4 EAD may wish to consider changing to H-1B status, or other nonimmigrant status that provides for work authorization, where that option is available.
This development will likely adversely affect many H-1B/H4 couples who currently rely on two incomes to support their families. In our practice we represent several physicians who are engaged in medical residency or fellowship training, who are relying on the H4 EAD. Some programs only allow their residents and fellows to train in J-1 status. If a resident or fellow loses his or her H4 EAD prior to completion of a program and if the program will only sponsor the resident or fellow for J-1, the physician could experience interruption or termination of their post graduate medical training due to unavailability of work authorization status. In some cases, even the J-1 could be out of reach to an H4 dependent who has previously been sponsored for permanent residence case.
