Today, the U.S. Court of Appeals agreed again to hold the H-4 EAD litigation in abeyance so that DHS can eventually move forward with a new rule to potentially rescind the H-4 EAD.
This was expected, not really news, but I’ve been getting lots of questions on it so hopefully this clears things up. Remember, the court has put the same case on hold again and again since the Trump administration came into office. The Trump administration has been hinting that they may want to take some regulatory action related to the H-4 EAD after the Buy American Hire American Executive Order indicated that the administration wants our immigration policies to better protect US workers. We learned this past December that the Department of Homeland Security plans to propose a new regulation likely to rescind the H-4 EAD as this was announced in their regulatory agenda. That proposal was expected to come in February 2018. However, before any proposed regulation can be published, it first has to be reviewed by the OMB. That review can take a few months. However, no proposal related to the H-4 EAD has even been submitted to the OMB yet. So, we won’t see a proposal for at least another month or two, if not longer. And remember, a proposal does not do anything to change the existing regulation. It is just a proposal. It has to go through the entire regulatory process, the public must be allowed to comment on the proposal, the comments must be reviewed, and only after all that is done can a final rule be published. Even if a final rule is published, it usually won’t take effect for at least 60 days and is very likely to end up in court. So, don’t be discouraged yet! And, keep pushing for immigration reform! If the green card backlog is fixed, we won’t need the H-4 EAD anyways!
You may also remember that the 2016 OPT STEM extension rule that created the 24-month extension is still under fire in court. Oral Argument in the appeal was held yesterday. There have been two lawsuits on the OPT STEM extension. The first lawsuit resulted in the 2008 rule being tossed out. That lead to the creation of the 2016 rule and the current 24-month STEM extension with the new training plan requirement. The second lawsuit challenged the 2016 OPT STEM extension rule as well as the OPT program in general. Last April, the district court in the second lawsuit dismissed the case. Washtech appealed. Oral arguments were held yesterday on this appeal. Remember, lawsuits take months, even years to wind their way through the courts. It will be some time before the appeals court makes any decision on the case.
As of now, the Trump administration is defending the 2016 OPT STEM rule, but that could change, especially given the fact that the DHS Regulatory Agenda already includes a plan for Practical Training Reform with a potential new regulation being proposed in October 2018: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=1653-AA76
At this time, I don’t think there is an intention to completely abandon the OPT program, but we may see more oversight and maybe some limitations on it in upcoming regulatory proposals this fall. Any proposal would generally go through a notice and comment period so we shouldn’t see much change happen in the near future.
A little history on the H-4 EAD:
- A month before the H-4 EAD rule that would allow certain H-4 visa holders the opportunity to work was set to take effect, Save Jobs USA filed a lawsuit seeking to stop the rule from being implemented. The plaintiff in the lawsuit is a group of computer workers who were formerly employed at Southern California Edison.
- Save Jobs argued that the H-4 EAD should have been issued through legislation, not through regulation and therefore the rule should be vacated. The group further alleges that they were displaced by H-1B workers and will now face even more competition from H-4 EAD holders.
- 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.
- Save Jobs USA immediately filed an appeal to the United States Court of Appeals for the District of Columbia Circuit…and then the election happened.
- First, the government requested an extra 60 days to respond to the appeal to allow “incoming leadership personnel adequate time to consider the issues.”
- Then, the government asked that the case be held in abeyance for another 180 days to give DHS time to reconsider the H-4 Rule and decide whether issuance of a notice of proposed rulemaking relating to it is appropriate. The government indicated that it would update the court every 60 days concerning the Department’s review and inform the Court promptly should it determine whether a new rulemaking is or is not appropriate before 180 days elapses.
- The court granted the stay on June 23, 2017 and directed the parties to file further motions on how they wish to proceed by September 27, 2017.
- Save Jobs filed its Motion and requested the Court to reschedule briefing and oral argument so that the case can be finally concluded.
- DHS then requested the appeals Court to hold the H-4 EAD case in abeyance AGAIN through December 31, 2017, to permit it to complete the review mandated by Executive Order 13,788 and also to adequately assess how to act regarding the H-4 Rule. DHS had to refocus its review of the H-4 Rule to ensure that it meets the newly announced priorities and to decide whether to undertake a new rulemaking concerning the H-4 Rule and comply with the President’s Order. The President’s Buy American and Hire American Executive Order provides that “[i]n order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).” Id., § 2(b). To effectuate this policy, the Order instructs the “Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security” to, “as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system. . . .” In that request DHS indicated that it was still evaluating next steps, and planned to announce its intentions in the fall Unified Agenda.
- On November 17, 2017, the court granted DHS’ request to hold the case in abeyance and requested both parties to submit new motions by January 2, 2018.
- Both parties submitted their motions on December 22, 2017. Save Jogs asked the court to issue a decision on the merits of the case, while DHS asked the court to keep holding the case until a new regulation can be published.
Here’s the court’s order issued today to continue holding the H-4 EAD case:
A little history on the STEM OPT:
- Back in August 2015, a D.C. federal judge said the 2008 Department of Homeland Security rule that allows STEM graduates in F-1 status to obtain an additional 17 months of OPT time in the U.S. was deficient. The decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security was based on the fact that DHS did not go through the usual notice and comment period required for new regulations. Immigrationgirl.com readers know that the judge vacated the 2008 rule allowing the 17-month extension, HOWEVER, a stay was put in place until a new regulation could be put in place. That new regulation took effect on May 10, 2016 and allows a new STEM OPT extension of 24-months. The same group of tech workers that challenged the old STEM OPT rule filed a new lawsuit in June 2016 in federal court again challenging DHS policy allowing student visa holders to work after completion of their studies.
- The new lawsuit brought by the Washington Alliance of Technology Workers argues that the Optional Practical Training (OPT) program denies labor protections to US tech workers, allows increased competition, allows unfair competition, provides foreign students the benefit of mentoring programs (i.e. the I-983 training plan) without requiring schools to give the same benefit to US workers, and violates procedural rights of US workers by failing to include the question of whether OPT should be expanded in the first place in the regulatory process. Washtech asked the court to issue a declaratory judgement (find in their favor without going through an entire trial) that DHS exceeded its authority by allowing F-1 students the ability to work, vacate the new regulations, and award attorneys fees to Washtech.
- The Department of Homeland Security responded to this lawsuit with a Motion to Dismiss (this occurred during the Obama administration), arguing that Washtech does not have standing because they could not prove that any injury was caused by the 2016 Rule or the old 1992 Rule. DHS argued that Washtech’s case relies entirely on cookie-cutter allegations they previously raised when they challenge the 2008 Rule and Washtech’s challenge to the 1992 Rule should be time-barred.
- The court dismissed the lawsuit, Washtech appealed, and now the appeal is under way