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.”
H4 visa: a primer (updated March 9, 2017)
End of the road for H-4 EAD program? (April 24, 2018)
Trump administration may soon end H-4 Visa Rule: report (February 1, 2018)
Tech industry urges USCIS not to cancel H-4 spouses’ work permits (January 19, 2018)
Trump to end H-4 EAD program for spouses of H-1B workers (December 15, 2017)
Trump administration asks for more time on H4 work authorization (April 4, 2017)
H4 visa-holders’ work authorization is under review: report (February 7, 2017)
H4 visa holders start to get EAD work permits from USCIS (June 29, 2015)
No work permits for H4 visa holders: lawsuit filed by Save Jobs USA (April 27, 2015)
458,177 H4 visas issued in 6 years between 2008-2013 (February 26, 2015)
COLUMN: EAD cards for H4 visa holders: USCIS needs to give it to all of them(February 24, 2015)
EAD cards for H4 visa holders: green cards better solution, says IEEE-USA (February 24, 2015)
H4 visa holders can apply for EAD cards beginning May 26, 2015 (February 24, 2015)
EAD cards to H4 visa holders: Immigration Voice lauds Barack Obama February 24, 2015
H4 visa: a primer (December 9, 2014)
Final rule on work permits for H4 visa holders by December 2014-January 2015(November 23, 2014)
Indian women on H4 visas eager to get back to work (May 8, 2014)
Many H4 visa holders will get work permits this year (May 7, 2014)
For H4 visa holders from India, the X visa all-important (May 26, 2013)
BLOG: The H4 visa conundrum (April 21, 2013)