While the lawsuit challenging President Obama’s executive action continues to garner headlines, an additional lawsuit has been filed contesting another part of the executive actions that DHS is attempting to implement. This time the lawsuit is challenging the administration’s authority to give work authorization to the H-4 dependent spouses of certain H-1B nonimmigrants. Currently, H-4 spouses are not authorized to engage in employment unless the spouse has his/her own work visa.
As a way of background, foreign nationals are admitted into the United States as immigrants, non-immigrants, or refugees. An admission into the United States does not necessarily authorize a foreign national to work, but a foreign national on an approved H-1B visa is authorize to work. Their dependents (individuals on an H-4 visa) are not authorized to engage in employment.
However, on November 20, 2014, President Obama announced that, as part of his attempt at immigration reform, the Department of Homeland Security (DHS) would be finalizing the H-4 Spouse EAD program that would grant work authorization to certain H-4 dependents. Specifically, the H-4 Spouse EAD program would extend employment authorization eligibility to certain the H-4 spouses of H-1B nonimmigrants who (i) are seeking employment-based lawful permanent residence status and are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or (ii) have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. Currently, the H-4 Spouse EAD program is expected to become effective on May 26, 2015.
Consequently, on April 23, 2015, a group of former employees of Southern California Edison (who claim they were laid off and replaced by H-1B workers) filed a lawsuit in the United States District for the District of Columbia against the administration challenging the H-4 final rule on the grounds that the rule was in excess of DHS authority and directly contradicts certain provisions of the Immigration and Nationality Act of 1952, as amended, in Save Jobs USA vs. U.S. Dep’t. of Homeland Security, Civil Action No. 1:15-cv-615.
Similar to the WashTech lawsuit challenging the OPT program, the plaintiffs allege that the H-4 EAD program will create additional competition by adding as many as 179,600 new foreign workers in the first year and 55,000 annually in subsequent years to the job market. Plaintiffs also contend that the program will serve as an incentive for more H-1B workers to remain in the United States, and by its implementation, DHS is ignoring statutory labor protections that must be applied to foreign labor. As part of the relief requested, the plaintiffs ask the court to (i) declare that DHS exceeded its legal authority by creating the H-4 EAD program; (ii) declare that DHS acted arbitrarily and capriciously by authorizing the program; (iii) permanently enjoin it from issuing employment authorization to H-4 visa holders; and (iv) vacate the H-4 rule.
A victory for Save Jobs USA would be a blow for businesses and nonimmigrants alike. In many H-1B households, it is not surprising to find both spouses on respective H-1B visas in order to create This year alone about 233,000 H-1B petitions were filed for the 65,000 general-cap and 20,000 master’s cap visas available, respectively. As a result, U.S. Citizenship & Immigration Services (USCIS) was forced to conduct a lottery (a computer-generated random selection process) to decide which petitions would be accepted for adjudication. Think about this. A COMPUTER—who does not take into account merits, degrees, level of education, or experience—gets to decide how pick the best and brightest talent for immigration employment purposes. Perhaps worse, such a result could not only undermine the government’s ability to implement greater immigration reform to a system that is definitely broken, but it could also create a roadblock for the overhaul of the U.S. Department of Labor’s arcane PERM system announced under the President’s Immigration Accountability Executive Actions last November.
Despite the pending lawsuit, the H-4 EAD program is currently projected to go forward and become effective on May 26. H-4 nonimmigrants should consult competent immigration counsel to assist them in determining whether they qualify for H-4 employment authorization under the new rule. Continue to check back with us for updates on the status of this important immigration development.