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Rescission of H-4 Dependent Visa Holder Employment Authorization Expected Before March 18, 2019 and Changes to 1-539 Request for Extension of Stay Form

February 19, 2019

Changes in the business immigration arena continue to affect non-immigrants in significant ways.

Rescission of H-4 Dependent Visa Holder Employment Authorization

By March 18, 2019, the Department of Homeland Security (DHS) is expected to publish a proposed regulation rescinding employment authorization documentation (EAD) for the H-4 spouse of H-1B visa holders.

Historically, the H-4 spouse of an H-1B specialty occupation worker was not permitted to work in the United States. However, commencing in 2015, in view of the delays to achieve permanent residence and per-country quota backlogs, the H-4 dependent visa holder was permitted to request employment authorization.

Currently, the spouses of an L-1 and E visa holder may apply for employment authorization and their eligibility to continue to work in the United States appears not to be at risk. A deadline has been set by the court in Save Jobs USA v. DHS that mandates DHS to furnish a brief or update regarding its plan about rescission.

Should DHS issue its proposed rule, a period of public comment would ensue. Public comment periods are generally 30 to 60 days long and during that period, all H-4 EAD rules, including the ability for H-4 spouses to file to renew EAD requests, will continue to be processed by the agency. Current regulations permit EAD renewals to be filed up to 180 days prior to expiration of current documentation.

It would be wise for H-4 visa holders to consider other work visa options that might be available in view of the fact that their ability to work in the United States in H-4 status may be rescinded. Our office would be pleased to consult regarding the effect of these changes and anticipated other revisions to the regulations.

Revision of Form I-539 Application to Extend/Change Status

Another significant change has been added to Form I-539, the application to change or extend stay, for dependents of primary visa holders. As of March 11, 2019, USCIS will impose a fingerprinting (biometrics) requirement for all family members, regardless of age. The form has been expanded to include an addendum for each family member’s signature. An additional biometrics fee of $85.00 has also been imposed for each dependent family member.

It is expected that this additional step will further delay processing of the I-539 extension of stay requests, which have already been experiencing delays of up to a year.

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