H-4 EAD Litigation Update – DHS Files “First” Brief

Late last year, the U.S. Court of Appeals gave the green light to Save Jobs USA allowing its lawsuit seeking the end of the H-4 EAD to move forward. Since the case is no longer being held in abeyance, a new brief was submitted by Save Jobs in January 2019 arguing that:

DHS does not have unlimited authority to admit aliens into the American job market through regulation (ie Congress did not authorize DHS to grant EADs to H-4 holders).

US workers are harmed by the H-4 EAD regulation because it allows increased economic competition from H-4 holders themselves.

US workers are harmed because they are deprived of statutory protections (because H-4 EAD holders can work anywhere, in any field, with no wage restrictions)

US workers are harmed because DHS’ action was designed to provide an incentive to H-1B holders to remain in the market, thus creating even more economic competition from H-1B holders in addition to the H-4 EAD holders

Immigration Voice should not have been allowed to intervene.

Yesterday, DHS filed its brief in response to Save Jobs’ claims and argued that the Court should agree with the lower court’s tossing of the lawsuit. The lower court had previously rejected Save Jobs’ challenge to the H-4 EAD Regulation on the grounds that Save Jobs lacked standing to challenge the rule (in other words, Save Jobs had not proven that their members were harmed by the H-4 EAD).

In its new brief, DHS argues that Save Jobs never established how its members, who work only in the information-technology sector, would clearly or immediately be harmed by the H-4 Rule—which affords employment authorization eligibility across a far broader range of economic sectors.

DHS argues that the district court was right to dismiss the lawsuit and the court should not go any further than that to hear the merits of the case.

Further, DHS argues that if the Court disagrees with the district court and holds that Save Jobs did show enough harm to keep the case alive, the appeals court should send the case back to the lower court to decide the actual merits of the case. The main issue that has yet to be addressed is whether DHS had the statutory authority to create the H-4 EAD. The district court did not previously decide that question, and DHS states that the appeals court should also not address whether the H-4 EAD was proper in the first place “particularly because the agency has taken the affirmative steps necessary toward publishing a notice of proposed rulemaking to remove H-4 dependent spouses from the class of aliens eligible for employment authorization.” If a final rule is issued that effectively rescinds the changes made by the H-4 Rule, this case will be moot.

The next step will be for Immigration Voice to file its brief April 8th and then Save Jobs will get to submit its response April 29th. Then we wait again for the court.

Regardless of the pending litigation or regulation, the H-4 EAD remains available and USCIS continues to approve them. You can continue to file unless and until a final regulation actually takes effect or a court says otherwise.

Background:

SAVE JOBS USA v. U.S. DEPARTMENT OF HOMELAND SECURITY was a case filed back on April 23, 2015, in the United States District Court for the District of Columbia. Save Jobs USA is an organization comprised of IT workers who claim they lost their jobs to H-1B workers. The group challenged the Department of Homeland Security’s (“DHS”) H-4 EAD regulation that went into effect on May 26, 2015. The court granted summary judgement in favour of the government, finding that only a subset of H-4 visa holders would be eligible to obtain EADs and Save Jobs USA did not establish that its members would be harmed by having to compete against a subset of H-4 visa holders for jobs. In addition, the court went on to state that Congress delegated authority to DHS to set rules regarding employment authorization and DHS was reasonable in using that authority to grant EADs to some H-4 visa holders. The case was closed at the district court level on September 28, 2016. An appeal was filed and the case had been held in abeyance at the appeals court since the Trump administration took control based on DHS’ indication that a new regulation rescinding the H-4 EAD rule was being planned. The appeal has now been going on for over two years.

In September 2018, the U.S. workers who brought the lawsuit had enough of waiting and filed a motion with the court requesting to remove the abeyance and move forward with the case. Save Jobs USA pointed out that the even though the case has been delayed, still no proposed rule has been submitted to the OMB. Save Jobs argued that “[j]ustice delayed is justice denied” and the longer the H-4 Rule remains in effect, the longer Save Jobs USA members and other American workers will “suffer injury from the presence of foreign competitors in their job market.” They also pointed to the vagueness of DHS’ previously submitted reports regarding the status of the proposed regulation and exactly what DHS plans to propose. Because DHS had yet to make good on its promise to propose a new regulation, Save Jobs wanted the court to decide the case, specifically the question of whether DHS has the authority to permit employment without Congress.

DHS filed its response in opposition back in September 2018. DHS stated that its senior leadership reviewed the proposed rule and returned it to USCIS this month for revisions. When the necessary revisions are incorporated, USCIS will return the proposed rule to DHS for final clearance and submission to OMB. DHS claimed in its filing that it was making “solid and swift progress” in proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization. At that time, DHS indicated that a proposed rule would be submitted to OMB within three months.

Because there is still no proposed rule submitted to OMB, the court has finally decided to grant Save Jobs’ request to remove the abeyance and move forward with the case.

In addition, Immigration Voice had filed a motion to intervene in the case. Immigration Voice is a non-profit organization working to alleviate the problems faced by legal high-skilled future Americans in the United States. The group suggested that the government may not defend the lower court’s ruling or may enter into some sort of settlement, and therefore the government does not adequately represent the interests of H-4 EAD holders. Both the government and Save Jobs USA had filed briefs opposing Immigration Voice’s request to intervene. The court granted Immigration Voice’s request to intervene.

The next step will be for Immigration Voice to file its brief April 8th and then Save Jobs will get to submit its response April 29th. Then we wait again for the court. In the meantime, the proposed regulation to remove the H-4 EAD remains pending with OMB for its initial review.
This article originally appeared on ImmigrationGirl.