Biden Administration Issues Memo Withdrawing the Proposed H-4 EAD Rescission Rule

February 1, 2021 Anne Walsh

Key Points

  • On January 25, 2021, the Biden administration ordered the withdrawal of a proposed regulation titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”
  • The proposed regulation was previously pending with OIRA (a division of the White House Office of Management and Budget) since 2019
  • The proposed regulation was withdrawn in accordance with a regulatory freeze memo issued by the Biden administration on January 20, 2021
  • Although the proposed regulation was never publicly released, it set to reverse a previously published final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrant workers
  • Litigation is ongoing in federal court regarding employment authorization for certain H-4 dependents of H-1B nonimmigrants

Overview

On January 25, 2021, the Biden administration ordered the withdrawal of a proposed regulation by the Trump administration titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” The regulation was withdrawn from review at the Office of Information and Regulatory Affairs (OIRA).

What are the Changes?

Prior to its withdrawal, the proposed regulation was pending with OIRA since it was received on February 20, 2019. The regulation was withdrawn in response to a regulatory freeze memo that was issued by President Biden on January 20, 2021.

Background

The regulatory proposal was first issued in the Department of Homeland Security (DHS) Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan. It was received by OIRA in February 2019 and it had been under review since then.

Although this regulation was never publicly released, it proposed removing regulations permitting H-4 dependents of H-1B holders to seek employment under the H-4 work authorization program, which was created in February 2015 by the Obama administration.

Looking Ahead

Litigation is ongoing in federal court regarding employment authorization for certain H-4 dependents of H-1B nonimmigrants. Updates will be provided as they become available.


Envoy is pleased to provide you this information, which was prepared in collaboration with Anne Walsh, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.

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