[With thanks to Shannon Donnelly and Melissa Allchin in our Global Immigration and Mobility group for working with Emily on this post.]

If you’re an employer with calls coming in from concerned managers or an employee with the immigration message boards on constant refresh, you’re not alone.

As if the executive orders and policy shifts in the last year weren’t enough to disrupt the workforce, potential changes on the horizon for certain employment authorized spouses of H-1B visa holders (known as H-4 visa holders) are a cause for concern among employers and employees, alike.

What’s happened? Nothing yet, but we expect Department of Homeland Security will release the new rule to remove and/or phase out employment authorization for H-4 visa holders for review and comment in the near future. Thereafter, we expect a new rescission rule to take effect later this year. Once the new rule is effective, H-4 visa holders will no longer be eligible to apply for work authorization or be able to maintain the work authorization they have.

Want to scour your I-9s immediately to see how the rule change could hit your headcount? Not so fast. Doing so could run afoul of anti-discrimination laws. Employers also should not preemptively terminate or take any other adverse employment action against an employee for having work authorization based on H-4 visa status.

Your priority should be the framework of your employment eligibility program. Do you have mechanisms in place to monitor and alert HR when work visas expire? When and how do you notify employees when you will need to reverify your I-9s?

You, as an employer, can also provide support to your employees in other ways:

  • Have an open dialogue to address concerns about employee concerns on this or other immigration issues in a manner that does not violate company policy.
  • Evaluate other visa options for those foreign nationals who self-identify as holding an employment authorization document based on the H-4 classification.
  • Consider whether your organization wants to have a role in the rule-making process by providing details to the DHS about the impact this, and other immigration related proposed rules, have on your organization and employees during the formal notice and comment period.

For more information, please contact your Baker McKenzie lawyer.