DHS Rule Would End Work Permits for H-1B Spouses

Proposed Rule to End H-4 Work Authorization

At the end of last month, Trump officials added to the regulatory agenda a rule titled, “Removing H-4 Dependent Spouses From the Classes of Noncitizens Eligible for Employment Authorization.” The regulatory summary did not list an expected date for publishing the rule.

“DHS is proposing to remove from its regulations certain H-4 dependent spouses of H-1B nonimmigrant workers as a class of aliens eligible to request employment authorization under the (c)(26) category,” according to a regulatory abstract. “This proposal would reverse the changes made in the 2015 final rule, ‘Employment Authorization for Certain H-4 Dependent Spouses,’ and restore DHS’s long-standing policy of not extending eligibility to request employment authorization to H-4 dependent spouses.”

According to National Foundation for American Policy calculations of government data, between FY 2023 and FY 2025, USCIS approved 228,147 initial and renewal applications for H-4 EADs. USCIS typically approves H-4 employment authorization documents for three years. The number does not represent an exact count of the H-4 EAD population, since some people may have received a green card or left the country after receiving approval.

Impact on Families and Employers

The rule would affect many H-1B spouses, who are highly educated. An NFAP analysis found almost 90% of spouses of likely H-1B visa holders have at least a bachelor’s degree, and more than half have a graduate degree. Almost half of those with a bachelor’s degree majored in science, technology, engineering, or math.

The loss of a second income and career could drive individuals waiting for employment-based green cards to leave for Canada or elsewhere. More than 1 million people from India are waiting in the employment-based immigration backlog. “This proposal would impose enormous hardship on families who are following the rules and waiting in line for permanent residence,” said Kevin Miner of Fragomen. “Taking away a spouse’s ability to work during that prolonged wait would deprive families of income, careers and financial stability through no fault of their own.”

He added: “This would also have a negative effect on the ability of companies to attract critically needed high-skilled talent.”

Administration's Pattern and Labor Market Effects

Ending employment authorization for the spouses of H-1B visa holders would fit the administration’s pattern of trying to reduce America’s labor supply through immigration restrictions, such as reducing legal immigration and ending Temporary Protected Status for most recipients. Economists consider a growing labor force essential to the U.S. economy, but White House Deputy Chief of Staff Stephen Miller appears to believe in the lump of labor fallacy—the notion that only a fixed number of jobs exists.

Reducing the number of foreign-born workers has not helped U.S. workers. The Bureau of Labor Statistics household survey for July showed a decline of 1.8 million foreign-born workers since January 2025. At the same time, the unemployment rate for U.S.-born workers increased to 4.6% in July from 4.3% in January 2025, when Donald Trump began his second term. An NFAP analysis by economist Madeline Zavodny found almost 90% of spouses of likely H-1B visa holders have at least a bachelor’s degree, and more than half hold a graduate degree.

Legal Challenges and Obstacles

The rule may face legal hurdles under the Administrative Procedure Act (APA), as seen in the Supreme Court’s DACA decision. In June 2020, the Court ruled that the Trump administration’s process for ending DACA was unlawful, concluding the administration had the right to end the program but failed to follow proper procedures, particularly given the reliance interests of recipients. According to Kevin Miner of Fragomen, any final rule eliminating H-4 employment authorization “could face serious scrutiny under the Administrative Procedure Act.” He noted that the DACA decision makes clear an agency cannot erase a longstanding policy without a reasoned explanation and meaningful consideration of reliance interests created by that policy.

Past lawsuits over EAD rules also show potential for court challenges. Jonathan Wasden of Wasden Law filed a lawsuit in January attempting to overturn an interim final rule ending the automatic extension of employment authorization documents. Wasden noted the government often moots such cases by delivering EAD cards, making it difficult to obtain broader relief for the H-4 community.