In my earlier post, I had talked about two hypotheses, one in which H-4 EAD would be significantly revised and second in which H-4 EAD would be completely rolled back or revoked. With the surfacing of a recent letter written by USCIS Chief Francis Cissna to Senate Judiciary Committee Chairman Charles Grassley and the language used, I would assert that it is still ambiguous whether they will revoke or revise the H-4 EAD rule.
Here is why I still think it is ambiguous.
a) In the letter cited above, Cissna emphasizes that their approach to improving integrity of the Immigration system is by “developing a combination of rule-making, policy memorandum and operational changes“. While rule-making procedure under the APA (Administrative Procedures Act) requires “notice and comment making” public notice and participation, policy memorandum and operational changes do not require such public notice. Legally, the federal government can skip a beat while quietly rolling out policies and operational changes as they are doing successfully with many H-1B change. Sometimes, the “beat skip” can lead to a “cardiac arrest” by way of a court objection to the “beat skip”. Any significant changes to the existing rule can only be done through “notice and comment rule-making”.
It is clear that in delaying the roll out of the “H-4 Dependent Work Authorization Rule”, the agency did not aim or intend to skip a beat and is fully prepared for rolling out a proposed rule while minimizing court objections. So, a “Proposed Rule” with significant changes for H-4 EAD is on the way, but “Fully Revoke” and “Significantly Revise” are still options available to USCIS/DHS from which they can chose one.
b) The letter reemphasizes USCIS Plans as in “our plans proposing regulatory changes to remove H-4 dependent spouses from class of aliens eligible for employment authorization, thereby reversing the 2015 final granted such eligibility“. Read in isolation, it seems like a final nail in the coffin for H-4 EAD. Read in conjunction with the next paragraph “Such action would comport with the E.O (Executive Order) requirement to propose new rules and issue guidance or revise previous rules and guidance, if appropriate“, it seems that the final decision of what will be done is still yet to be taken.
c) Finally, here is the strongest argument about my assertion. The letter was written on 04 April. It is obvious that the economic analysis to revoke/revise H-4 EAD is still ongoing (unless it is already completed and my assumption is wrong). USCIS is going the extra length to follow the process by potentially carrying out a detailed economic analysis of the impact of H-4 EAD revocation before revoking it or is carrying out an internal economic analysis to keep the rule while significantly throttling it. Whichever the case, it is important to note that they are exercising due diligence to avoid potential legal challenges. A letter written on 04 April 2018, which essentially oversteps that analysis by indicating that a “decision has been made to fully revoke H-4 EAD” can be gainfully used by a good lawyer in giving a political spin to a “process based decision” supported by economic analyses. In light of this, my assertion that a final decision to “revoke or revise” is still pending a review.
Whichever way this goes, it is clear that H-4 EAD will face full revocation or significant revision. While USCIS carries out careful due diligence, it is almost certain that existing H-4 EAD holders will be allowed to naturally expire their work authorization. The agency will most certainly propose the rule in a manner that minimal legal challenges can be mounted against them.