Greenspoon Marder Immigration Alert: Proposed Rule To Rescind H-4 EAD Expected Before March 18, 2019

Feb 6, 2019

By: Greenspoon Marder’s Immigration Team

Update: Proposed Rule To Rescind H-4 EAD Expected Before March 18, 2019

The Department of Homeland Security (DHS) could shortly publish the proposed regulation rescinding the H-4 employment authorization document (EAD) program, probably before March 18th, 2019. This is the deadline set by the court in Save Jobs USA v. DHS requiring DHS to provide a brief or update on their plans in regard to the rescission.

If the proposed rule is issued, the next steps would be a period of time for public comment which is typically 30-60 days long and then issuance of the final rule. The rulemaking process will take several months, so a regulation could be finalized in the middle to late 2019.

DHS has not indicated whether it will provide a transition period during which current H-4 EAD holders may continue to work or renew their EADs, however at this time the H-4 EAD rule remains in place and all eligible foreign nationals who plan to apply for or renew an EAD under the H-4 program should do so as soon as they are eligible. Foreign nationals can file an EAD renewal application up to six months before the expiration of their current document. In addition, it may be prudent to discuss filing in other visa categories in advance of the rescission of the program.

AILA Report Reveals “Crisis-Level” Delays in USCIS Case Processing

According to a new report by the American Immigration Lawyers Association (AILA), delays at U.S. Citizenship and Immigration Services in processing applications for visas and other immigration benefits have reached a “crisis-level”, with the average processing time up by 91 percent over the last five years.

The report examines how those delays harm families, vulnerable individuals, and U.S. businesses; how current USCIS policies lengthen, rather than mitigate, slowdowns; and what steps USCIS and Congress can take to remedy this case processing crisis.

In analyzing agency data from fiscal years (FY) 2014 through 2018, AILA found:

The overall average case processing time surged by 46 percent over the past two fiscal years and 91 percent since FY 2014.
USCIS processed 94 percent of its form types—from green cards for family members to visas for human trafficking victims to petitions for immigrant workers—more slowly in FY 2018 than in FY 2014.
Case processing times increased substantially in FY 2018 even as case receipt volume appeared to markedly decrease.

Other data examined by AILA shows a “net backlog” exceeding 2.3 million delayed cases at the end of FY 2017. This total amounts to more than a 100 percent increase over a one-year span despite just a four percent rise in case receipts during that same period.

Changes in H and L Visa Processing in China

The Department of State (DOS) and Mission China announced a plan to consolidate the processing of H and L visa applications for foreign nationals seeking to work in the United States.

Starting March 1, 2019, interviews for H and L visas will be conducted only at the U.S. Embassy Beijing. The U.S. Consulate General Chengdu and U.S. Consulate General Shenyang will no longer be conducting H or L visa interviews. These changes are a result of the volume and complexity of H and L visa petitions, and will ensure adequate resources and expertise are effectively applied in reviewing the petitions.

The Mission will also be updating its websites and sending out emails to attorneys who routinely represent H and L applicants in China to alert them of this change as well.

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This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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Greenspoon Marder Immigration Alert: Proposed Rule To Rescind H-4 EAD Expected Before March 18, 2019

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