On April 3 in the U.S. Court of Appeals for the District of Columbia Circuit, the Department of Homeland Security (DHS) signaled yet another angle on the review of the H-1B category, but this time it focused on the ability of H-1B spouses (H-4s) to gain work authorization in limited circumstances. DHS filed a Motion to Hold Proceeding.
On May 26, 2015, 8 CFR §§214.2 and 274a.12 were revised to allow certain H-4 dependent spouses to qualify to apply for employment authorization. For an H-4 spouse to qualify, the H-1B nonimmigrant must:
- be the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- 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 (AC21).
On April 23, 2015, a group of tech industry workers who were employed by Southern California Edison filed a complaint (as Save Jobs USA) for declaratory and injunctive relief seeking to stay the implementation of the H-4 regulation. These workers alleged that they lost their jobs and were replaced by foreign workers. They alleged that by allowing H-4 dependents work authorization, U.S. workers would face even more competition from foreign workers, and that the new regulation must be invalidated because DHS lacks the statutory authority to allow H-4 visa holders to work and that the regulation is arbitrary and capricious due to Congressional policy of restricting H-4 visas to residency only.
On May 24, 2015, the District Court denied the Plaintiff’s Preliminary Motion for Injunction based on the inability of the plaintiff to show irreparable harm absent preliminary relief.
So, on September 28, 2016, Save Jobs USA filed a Notice of Appeal to the U.S. Court of Appeals and is represented by the Immigration Reform Law Institute (IRLI). Kris Kobach the 31st Secretary of State for Kansas is Of Counsel to IRLI and was under consideration for Deputy Secretary of DHS, but was apparently rejected by DHS Secretary Kelly.
THE CRYSTAL BALL
On April 3, DHS filed a Motion to Hold Proceedings in Abeyance for Six Months, because DHS “concluded that it is appropriate to actively reconsider whether to revise the H-4 Rule through notice-and-comment rulemaking.” The Court of Appeals has not rendered a decision yet, but if approved, it will be critical to track proposals for revision of the regulation. Those who currently have H-4 work authorization may face an inability to renew such authorization in the future as a possible scenario. In addition, companies may have to address a revocation of this option for spousal work authorization in the future.
Certainly, the leaked draft Executive Order allegedly under review by the Trump administration regarding skilled workers noted that regulations, as appropriate, should be proposed to “restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers.” Stay tuned.