U.S. Federal District Judge Upholds Legality of H-4 Employment Authorization Program

Michael T. Jackson, SHRM-CP & Tristan North - Apr 13 2023
Published in: Public Policy
| Updated May 03 2023
U.S. District Court ruling maintains ability of certain H-4 visa holders to apply for an Employment Authorization Document

On 29 March 2023, the United States District Court for the District of Columbia upheld the legality of the H-4 spousal work program, which allows certain H-4 visa holders to apply for an Employment Authorization Document (EAD) by submitting an I-765, Application for Employment Authorization.  The case, Save Jobs USA v. Department of Homeland Security, focused on the legality of the U.S. Department of Homeland Security (DHS) regulatory rule that first went into effect in May 2015.  A coalition of over 40 companies and associations, including Worldwide ERC, filed an amicus brief in May 2021 supporting the H-4 EAD program.

This decision follows years of uncertainly regarding the H-4 rule, including an attempt to rescind it during the Trump Administration.  It also comes just two months after U.S. Citizenship and Immigration Services (USCIS) resumed the adjudication of I-765s for H-4 and L-2 dependents after a settlement was reached on 19 January in Edakunni v. Mayorkas in which the agency agreed to reinstate the practice of bundling the adjudication services. The bundling of applications had been procedure but changed in March 2019. Since then, adjudication for H-4 and L-2 applications was taking up to two years in certain cases causing breaks in work authorization. The resumption of the bundling will result in the processing of H-4 and L-2 applications in as little as 15 days with premium processing.

For workforce mobility professionals, this ruling maintains a critical mechanism for permitting dependent spouses of certain H-1B visa holders to gain employment during their time in the United States.  This decision also reflects the successful culmination of efforts by Worldwide ERC, many of our member companies, and numerous other organizations to engage together in support of an important part of many corporate mobility programs.

Michael T. Jackson is the Vice President, Member Relations and Operations, at Worldwide ERC.  Tristan North is the Government Affairs Advisor at Worldwide ERC.