DHS Will Probably Take a Dive on H-4 Visa Work Permits, Just Like It Did on DACA

By John Miano on May 2, 2019

The U.S. Department of Homeland security submitted a proposed rule to rescind the H-4 (spouses and minor children of H-1B visa holders) work authorizations to the Office of Management and Budget (OMB) for review back in February. Such a review can take a few months.

I do not expect OMB will approve the regulation because the Deep State that President Trump has allowed to remain at DHS has sabotaged every attempt the administration has made to rescind Obama's unlawful work authorizations. In spite of President Trump's campaign promises, every one of these still remains in place.

When the DACA rescission gets challenged in court, the Deep State takes a dive defending the administration. They do not raise the best arguments in favor of rescission and then they lose in court. For example, in one of the DACA cases, NAACP v. Trump, the district court's opinion points out the constitutional arguments DHS could have made against DACA. The court also points out that, because DHS did not make those arguments, it would not consider them.

The text of the proposed regulation to rescind H-4 work authorization has not been released. However, I believe that the text has been drafted in such a way that it is unlikely to survive a legal challenge. I also suspect that OMB has come to realize that as well.

As soon as it became clear that DHS was taking a dive in courts on the DACA, it also became clear to me that the courts would decide the fate of H-4 employment. The briefing in the Save Jobs USA v. DHS case, challenging whether the H-4 is lawful, is now done. We await the schedule from the D.C. Circuit.