There is hope for H4 EAD holders in court ruling on DACA

Image via USCIS.gov

Last week, a federal court ruled that ending DACA was “arbitrary and capricious,” and there are similarities between the Trump administration’s attempt to revoke H4 EAD and DACA.

May has been an eventful month for the Deferred Action for Childhood Arrivals (DACA) beneficiaries in the country. Last week, the 4th Circuit Court of Appeals in Virginia struck down the Trump administration’s decision to rescind the benefits of some 800,000 recipients. In a majority ruling, the court ruled that the decision was “arbitrary and capricious.”

Legal experts say the ruling — a major reversal of fortune for DACA beneficiaries — instills hope for another group of people in a precarious immigration situation: H4 EAD holders.

Employment Authorization Documents were granted to certain category of H4 visa holders by the Obama administration in 2015. The Trump administration signaled its intention to terminate these work permits right from the beginning.



The Department of Homeland Security submitted a proposal to terminate the H4 EAD to the Office of Management and Budget for review in February, and OMB, a White House agency that is tasked with reviewing proposed legislation, is currently reviewing it.

Now, as nearly a hundred thousand H4 EAD holders — mostly women — wait for the OMB decision, the 4th Circuit Court of Appeals decision on DACA holds out hope for them.

“The latest DACA ruling is based on the court’s finding that the government’s decision to rescind DACA was arbitrary and capricious under the Administrative Procedure Act,” said renowned immigration attorney Emily Neumann. “When an agency makes a decision, it must examine the relevant data and articulate adequate reasons for its decision, otherwise the agency’s action can be found unlawful. The court found DACA’s rescission to be arbitrary and capricious because the Department of Homeland Security failed to give a reasoned explanation for the change in policy.”

The attorney finds parallels in the administration’s attempt to revoke H4 EAD. “In regards to the H-4 EAD, at the time it was first proposed, DHS provided a reasoned analysis that supported the regulation’s legality,” she said. “If DHS now attempts to change course and rescind the H-4 EAD without any explanation for why that previous analysis was faulty, a court could find this to be arbitrary and capricious and set aside the agency action, just like it did in the DACA ruling.”

The DACA ruling also found that DHS did not adequately account for the reliance interests of the hundreds of thousands of people who had structured their lives on the availability of DACA. And the same reasons can aptly apply for H4-EAD, too.

“In creating the H-4 EAD, the government promised H-1B families that H-4 spouses would be allowed to live and work in the United States as long as they were in line waiting for a green card,” Neumann said. “Approximately 90,000 people reasonably relied on the availability of the H-4 EAD. If DHS fails to adequately account for the reliance interests of these families in choosing to rescind the H-4 EAD, it can similarly lead a court to find the termination unlawful.”

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