D.C. Circuit Court Reviews H4 EAD Case

Ritu Jha-

There was a little sigh of relief for H4 EAD workers Friday, in the DHS vs. Save Jobs USA case when the D.C. Circuit Court decided it was best to remand in order to give the district court an opportunity to thoroughly asses and finally determine the standing issue.

A federal judge did not make the final decision and dismissed the case, saying the plaintiff (Save Jobs USA) lacks standing because it did not prove the rule would hurt its members.

Save Jobs USA, an association formed to address the problems American workers face from foreign labor entering the United States job market through visa programs, had claimed that DHS has no authority to issue H4 EAD work permits.

The president Obama era executive order has given relief to spouses of H-1B visa holders to work in the USA, but the Save Jobs USA challenged the rule in the district court, arguing that it exceeded the Department’s statutory authority, and that in adopting it, the Department acted arbitrarily and capriciously. The group also argues that the rule gives visa holders an incentive to stay in the U.S.

According to corthousenews.com, during the oral argument, the Department of Homeland Security claimed that no person with an H-1B visa would compete with American tech employees because they would first have to be offered a job that no American worker could fill. But the three-judge panel rejected that argument as well.

“The rule, as well as the Department’s own briefing here and before the district court, explains that for H-1B visa holders’ spouses to qualify for employment authorization, the H-1B visa holders need only be the beneficiaries of pending labor certification applications,” U.S. Circuit Judge David Tatel wrote. “While the application remains pending, H-1B visa holders compete in the labor market against Save Jobs’ members. Even more, after the labor certification is issued, in certain circumstances H–1B visa holders may change jobs without obtaining new certifications.”

John Miano, an attorney representing Save Jobs USA, said in an interview Friday to courthousenews.com, the group will continue to ask for a decision on merits of the rule.

“It’s what we expected would occur, the court had said that we weren’t going to be able to argue the merits so we knew [the ruling] wouldn’t decide the merits,” Miano said.

Miano said he’s worked at a few companies that have been affected by H-1B visa workers vying for the same positions as American workers but he left the company for law school before being adversely affected.

“I was a computer programmer before, so I saw all this garbage that plaintiffs went through,” he said.

However, the questions remain, according to www.am22tech.com, DHS is still on its way to revoke H4 EAD as per their intentions using the rule making process. The result of this court case is only a temporary relief. Saving H4 EAD will still need a lawsuit if DHS publishes revoke rules in Spring 2020.

Meanwhile, Immigration Voice, a green card advocacy group, who was allowed to intervene in the above case, stated in a blogpost,  “Our objective to intervene in the lawsuit was to prevent Save Jobs USA and DHS from negotiating and agreeing to quick settlement to immediately end H4EAD rule. ”

“Our stated goal was to prevent this lawsuit being used as a medium to quickly end the H4 EAD rule by preventing Save Jobs USA and DHS from negotiating and agreeing to a quick settlement to end the H4 EAD rule.”

Aman kapoor, founder of Immigration Voice, told indica, “Immigration Voice had intervened in March, 2017, and at that time, as expected, Save Jobs USA had objected to our intervention.”

“But that is no longer relevant because the Court of Appeals had already accepted our intervention to the case in 2018 and now Immigration Voice is a party to the H4 EAD lawsuit. So it is no longer irrelevant that Save Jobs USA objected to our motion to intervene. Immigration Voice is already party of the case even if Save Jobs USA decides to refile the same lawsuit in the District Court,” he said.

“As a matter fact, immediately after we intervened in the lawsuit, DHS figured out that it can no longer get rid of the H4 EAD rule by settling the case with Save Jobs USA, and thus it declared the intent to change of regulation to rescind H4 EAD rule,” Immigration voice stated.
When asked on the issue of delay in the renewal of H4 EAD, he agreed and said, “Yes, our members have reported that it takes long time to process H4 EAD petition.”
However, that matter is outside the preview of this lawsuit. The delay with processing H4 EAD applications is a separate processing delay issue with the USCIS. And that is why the only permanent solution to all such problems is to pass the Fairness bill, which will remove per country limits, making the system equal and ensuring that everyone is treated equally under the law.


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