Nail biting wait for H4 EAD decision as court passes baton to DHS, says respond in 90 days

A fresh round of alarm bells are going off in America’s H4 EAD community. The prolonged Save Jobs USA versus Department of Homeland Security (DHS) case challenging employment authorisation for a large swathe of H4 dependants has turned another corner Wednesday with the court asking DHS to respond within 90 days on its stated intention in Fall 2017 to revoke the EAD for H4 dependants of H1B workers.

Link: Our special coverage of the H4 visa in America

The 90 day timeframe seen through the lens of DHS’ moves so far signals that closure from the Trump administration side is more likely now than at any other time in the last year or so that this issue has kept more than 100,000 H4 dependants on perpetual cliff edge. The other more crucial angle to this story is whether the immigration debate that will erupt in Congress next week delivers the goods for those on Green Card backlogs. If it does in a substantial way, then the H4 EAD issue is not such a worry wart. If there's no movement on the GC backlog, then the H4 EAD is in a real jam.

Handpicked by Trump, Nielsen heads the DHS which is at the heart of the H4 EAD roulette/ REUTERS

Here’s how the ducks are lining up:

1. The DHS has already published an agenda item last Fall taking a sledgehammer to the H4 EAD.

2. The Save Jobs USA versus DHS case is an old story with a new nativist shine reflecting off the Trump win in 2016 and US President’s America First dog whistle.

3. Overall, the DHS line to the court over the last year has been singular - aligning policy with the Buy American, Hire American Executive Order.

4. With the latest court ruling, the case and the DHS proposed rule are not running in parallel any longer. One will inform the other which the DHS folks (and Save Jobs USA) will certainly welcome.

5. H1B workers are on an all-out advocacy push so that employment based GC backlogs get noticed and fixed in the name of comprehensive immigration reform. Their best case scenario is if the I-squared bill sponsored by Senator Orrin Hatch piggybacks on whichever bill gets past Congress. After the Senate failed to pass any bill last week, the House will seek to push a Trumpian version through after which it's back to the Senate where any bill needs a 60 vote super majority to make the cut. On the upside for Indian GC hopefuls, Trump and his acolytes all support a DACA plus model where employment based immigration gets a seat at the high table. The resistance is coming not just from the Democrats but from centrists in Trump's own party who can't stomach the fact that Trump's immigration agenda is being driven by a 30 something firebrand called Steven Miller.

DHS may decide to wait to know the fate of immigration reform and then figure how to deal with the H4 EAD or push forward right away. For those on the GC waitlist, what happens in Congress will determine their thinking on the H4 EAD.

Related links: Senate sinks 4 immigration bills

H1B workers' Green Card woes make inroads into Washington, D.C.