Unresolved Petition on H-1B

The US DHS (Department of Homeland Security), in its petition, has defended its right to grant employment authorization to a certain category of spouses of H-1B workers.

This move provides a relief to over 1 lakh Indian-spouses of H-1B workers who hold an employment authorization document (EAD). It also means that eligible spouses can continue to file applications for obtaining employment authorizations for EAD renewals.

The Trump administration has sought dismissal of the request for preliminary injunction sought by Save Jobs USA – a group of American technology employees who have lost their jobs to H-1B visa holders. In non-legal parlance, DHS has asked the US district court to not to bar issuance of employment authorization to H-1B spouses.

Cyrus Mehta, New York-based immigration attorney says, “The Trump administration’s position in its latest pleading is at odds with the position it has taken earlier against work authorizations for H-4 dependents. They have been trying to issue a regulation to revoke the Obama era rule, but have not been able to get it through. Probably the Office of Management and Budget (OMB), may have advised that the proposed regulation had no economic and legal rationale. The administration must also be facing a lot of pressure from allies in big business who support H-4 EADs.”

As the proposed regulation to rescind the H-4 EAD rule is yet to be reviewed by the OMB, immigration activists feel that the plan is on the backburner.

Consequently, in April 2015, Save Jobs USA, had filed a lawsuit. The group had argued that its members are harmed by the H4-EAD rule that grants employment authorization eligibility.

As reported in its edition of November 11, the US Court of Appeals had concurred with the views of ‘Save Jobs USA’ that granting of employment authorizations to spouses of H-1B visa holders, increases competition for American jobs. As spouses can work, it provides an incentive to the H-1B visa holders to continue to stay in the US. However, the Court of Appeals had remanded the matter to a lower (district court) to decide the case on merits. This led to DHS filing its petition before the District Court.