H-4 Visa Holders Remain Eligible for Work Authorization

In February 2015, under President Obama, the Department of Homeland Security (DHS) extended work authorization to certain spouses of H-1B visa holders who are seeking employment-based lawful permanent resident status. Then, under President Trump, DHS published a proposed rule in 2018 which would have rescinded the ability of those H-4 visa holders to apply for work authorization. That proposed rule, however, was not finalized prior to the end of President Trump’s term.

On January 20, 2021, President Biden ordered the withdrawal, pending review, of all rules which have not yet been published as final. Therefore, on January 25, 2021, DHS withdrew the 2018 rule.

Notably, however, a lawsuit remains pending over the original 2015 final rule. That lawsuit was stayed based on DHS’ representation that it was considering changes to that rule.  The suit, Save Jobs USA v. DHS, was brought in 2015 by a group of tech workers challenging DHS’ authority to grant work authorization to H-4 visa holders. On February 2, 2021, the court ordered the parties to submit a joint status report by March 5, 2021, advising whether the lawsuit should remain stayed or whether litigation should continue.

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