On February 24, 2015, the immigration service (USCIS) announced that effective May 25, 2015, they are extending employment eligibility to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

H-4 spouses will be eligible to apply for an Employment Authorization Document (EAD) if their H-1B spouse is the beneficiary of an approved I-140 immigrant petition, or their H-1B spouse has been granted a 1-year or 3-year H-1B extension under AC21.

On February 16, 2015, U.S. District Judge Andrew Hanen issued a temporary injunction against the implementation of the Obama Administration’s executive actions on prosecutorial discretion in immigration, known as the DAPA (Deferred Action for Parental Accountability) and the DACA+ (expanded Deferred Action for Childhood Arrivals) programs.  This was not entirely unexpected as the DACA+  program was set to begin on February 18. 

In the case brought against the U.S. government by the governors of Texas and 25 other states, Judge Hanen’s very narrow decision found some merit to the states claim that they would be adversely economically impacted by the DACA+ and DAPA programs, and that the Obama administration had failed to follow the rulemaking process required by the Administrative Procedures Act.  On February 23, the federal government filed a motion to stay the preliminary injunction pending an appeal of the judge’s decision. 

The Obama administration is confident that they will ultimately prevail.  Judge Hanen appeared to disregard information submitted by the government and other interested parties as to the widespread economic and social benefits that the DACA+ and DAPA program would provide.  Also, the judge appeared to ignore the fact of an existing rule (that had gone through the APA process) which covers DACA and DAPA.

Nevertheless, both the DACA+ and DAPA programs have been placed on hold until an appellate court issues an emergency stay of the injunctions or overturns it altogether.  If an emergency stay is not ordered, it may be several months before the deferred action programs will be implemented.

In the meantime, it is recommended that individuals who are potentially eligible for DAPA or the DACA+ program begin preparing to apply – they should begin gathering the necessary documentation and seek good counsel to give themselves the best chance for success and to avoid potential problems.  Importantly, they must be wary of ‘notarios’ and others who offer legal advice without a license that is unethical and fraudulent.

Finally, it is important to note that those who were granted DACA already under the program implemented in 2012 are in no way affected by this ruling, so they should apply for their DACA renewal as planned.