From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our fourth post we will discuss executive action on H-4 EADs and the related lawsuit. 

After DHS announced that some H-4 spouses of H-1B workers would be eligible for work authorization, a group called Save Jobs USA filed suit against DHS to stop implementation of the rule. The battle between Save Jobs USA and DHS over regulations granting work authorization to certain H-4 visa holders continues in the United States District Court for the District of Columbia with both sides having filed motions for summary judgment during 2015.

Background

In February 2015, DHS published a rule stating that eligible H-4 spouses of H-1B workers could apply for employment authorization documents (EADs). These H-4 spouses will be eligible for employment authorization if the H-1B employee is the beneficiary of an approved I-140 employment based petition or has been granted H-1B status beyond the six year H-1B maximum based on a PERM labor certification or I-140 filed at least 365 days before the six year maximum.

The Lawsuit

The plaintiff, a group of computer workers known as Save Jobs USA, worked for Southern California Edison and allege that they were replaced by foreign workers on H-1B visas. They formed Save Jobs USA to “address the problems American workers face from foreign labor entering the United States job market through visa programs.”  In line with their stated goals, they filed suit against DHS to challenge the 2015 H-4 EAD rule, which grants work authorization to certain H-4 spouses who previously were not eligible to enter the US labor force under their H-4 visa. Much of the complaint is focused on the increase in foreign competition in the US labor force, which the plaintiff claims burdens US citizens by increasing the difficulty of finding a job. The complaint states that the new rule will increase the foreign workforce by 179,000 in the first year and 55,000 in following years.

To the great relief of H-4 EAD applicants, the Court dismissed the plaintiff’s motion for preliminary injunction, allowing USCIS to implement the H-4 rule effective May 26, 2015. However, the litigation on the merits of the lawsuit is still pending. On September 11, 2015, the plaintiff filed a motion for summary judgment and legal brief seeking the judge’s declaration that the EAD rule is invalid.

Analysis

This case raises similar legal challenges as those presented by the Washington Alliance of Technology Workers in their lawsuit challenging the STEM OPT program.  In order for the D.C. District Court to decide on the merits of the case, Save Jobs USA must first clear a procedural hurdle: they must prove that they have standing, or a real, legally protectable right or interest.  They claim that they have standing because three of the group’s members allegedly lost their jobs to H-1B visa holders.  That allegation has yet to be proven, and even if it were so, there is no clear nexus between that perceived injury and the H-4 EAD program.  The weakness of the standing arguments should decide the case and put the litigation to rest, however the suit was filed in March 2015 and remains pending.