SAVE JOBS USA v. U.S. DEPARTMENT OF HOMELAND SECURITY was a case filed back on April 23, 2015 in the United States District Court for the District of Columbia . Save Jobs USA is an organization comprised of IT workers who claim they lost their jobs to H-1B workers. The group challenged the Department of Homeland Security’s (“DHS”) H-4 EAD regulation that went into effect on May 26, 2015. 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. The case has been winding its way through the appeals process for the last four months. Save Jobs USA filed its brief discussing the merits of the case on January 11, 2017.
Last month, the government filed a motion last week to request an extra 60 days to submit their brief in response to the Save Jobs USA brief. The government’s motion was filed simply to request time for incoming leadership personnel to consider the issues. The government has until April 2nd to submit it’s brief in support of the H-4 EAD rule.
Earlier this month, an organization named Immigration Voice filed a motion to intervene in the case. Immigration Voice is a non-profit organization working to alleviate the problems faced by legal high-skilled future Americans in the United States. The group suggests that the government’s request for a 60-day extension was “highly unusual” and argues that request for extension implies that the government may not defend the lower court’s ruling or may enter into some sort of settlement, and therefore the government does not adequately represent the interests of H-4 EAD holders.
Both the government and Save Jobs USA have now filed briefs opposing Immigration Voice’s request to intervene.
The government argues that it has never given any indication that it does not intend to defend the H-4 EAD rule. The government further argued that the group should have sought to intervene at the district court and not waited until the case is on appeal.
Save Jobs also argues that it is too late for Immigration Voice to intervene. Further, they suggest that had the group intervened in the district court, Immigration Voice’s mere presence would have been the additional evidence the district court needed to support Save Jobs’ argument that their members were harmed due to competition, because “All of Immigration Voice’s members are legal high-skilled workers and many are employed as doctors, researchers, scientists, and other similar professions.” In other words, Immigration Voice’s intervention would have actually supported Save Jobs’ arguments in the district court, and it would be unfair to allow the group to join the case at this stage. Further, Save Jobs argues that allowing Immigration Voice would set up a double team against Save Jobs and would require a new round of legal research and extra time and expense to reply to two parties in the lawsuit.
As I have stated before, the Trump administration’s request for an extra 60 days to respond does not imply that the government won’t defend the H-4 EAD rule. Many of the readers here will remember that the Obama administration had asked for a delay in the STEM OPT litigation as well. We don’t know when this court will rule on Immigration Voice’s motion to intervene, but based on the responses of both parties, I think it will be tough for the group to join the case at this stage.