On February 5, 2015, the Department of Homeland Security (DHS) finally submitted the much anticipated H-4 EAD regulation to the Office of Management and Budget (OMB) for review, clearance, and approval. The OMB generally takes 30 to 60 days to review and approve the final regulation, barring any unexpected congressional review, reconsideration, or rejection of the regulation as part of Congress’ rulemaking oversight.
After OMB’s approval, the rules will be published in the Federal Register with the specific implementation date, application procedure and requirements. The rule will allow an H-4 to apply for an employment authorization document (EAD) provided the H-1B employee:
- Is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker; or
- Has been granted an extension of his/her authorized period of stay in the U.S. under the American Competitiveness in the Twenty-first Century Act (AC21).
Once the rule becomes effective, eligible H-4 spouses can file their EAD application (Form I-765), and USCIS takes approximately 90 days to process EAD applications.
DHS’s timing and decision to submit the final rule to OMB for approval may have been influenced by the pending lawsuit filed by 26 Republican leaning states to block implementation of President Obama’s administrative reforms of immigration policy announced last November. The implementation of the long-awaited H-4 EAD rule will reinforce President Obama’s commitments to immigration reforms.