Yesterday, the court in the ongoing H-4 EAD litigation issued an order removing the case from abeyance and scheduled a new round of briefs to be filed next month.
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 favor 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 has 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 thought 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 has 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.
Now, in December 2018, there is still no proposed rule submitted to OMB and the court has finally decided to grant Save Jobs’ request to remove the abeyance and move forward with the case.
In addition, earlier this year, 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 finally ruled on this motion as well and granted Immigration Voice’s request to intervene.
Now that the court gave the green light to Save Jobs allowing the case to move forward, the case is no longer being held in abeyance and a new brief must be submitted by Save Jobs by January 16, 2019. The government has until February 15, 2019 to respond. In addition Immigration Voice has until February 22, 2019 to file its own brief.
All this means that we are basically back to where we were in 2016 before the case was held in abeyance. A proposed regulation has still not been submitted to OMB for its review as of today. The court’s decision may now force DHS to act faster in issuing a proposed regulation in order to avoid the litigation moving ahead.
Regardless of the pending litigation, 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.