****Update on the pending litigation: on March 13, 2019, the court granted DHS’ motion requesting additional time to file its brief. Instead of March 18th, DHS’ brief is due April 1st and a reply brief is not due until April 29, 2019).***
Yesterday, the Department of Homeland Security submitted a proposed regulation, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization” to the Office of Management and Budget for review.
There is no information available yet regarding what is in the proposed regulation or how the government intends to handle existing H-4 EADs.
OMB review typically can take about a month to be completed, but could be as quick as two weeks. From that point, the following steps will need to occur:
- actual proposed regulation will be published in the Federal Register
- there will be a comment period, anticipated to be 60 days, could be 30 days
- DHS will review the public comments and develop a final regulation
- final regulation will be submitted to the Office of Management and Budget again for review
- final regulation will be published in the Federal Register with a specific effective start date – because it is economically significant, it can’t take effect earlier than 60 days from the time the final regulation is published
- anticipate a lawsuit to be filed
While this process is underway, you can continue to file new H-4 EAD applications and renew existing H-4 EADs.
If we use the recent H-1B electronic registration regulation as an example, from the time that proposed rule was published in the federal register to the time the final rule was published was two months (30-day comment period followed by 30 days to review comments, submit final rule to OMB, and publish in federal register), which is quite fast. Assuming this rule follows the same, and keeping in mind that DHS must submit its brief in the H-4 EAD litigation by March 18th, my guess is that the proposed rule will likely be published in the next 30 days, let’s say March 15th (just before the H-1B lottery opens, but possibly too late to prepare to file). A 30-day comment period plus 30 days to issue the final regulation puts us around May 15th. The final rule can’t take effect for 60 days, which puts its effective date around July 15th.
The submission to OMB can be found at https://www.reginfo.gov/public/do/eoPackageMain -Under “Regulations under EO 12866 Review” select Department of Homeland Security