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. They claim:
- the H-4 EAD causes injuries to Save Jobs USA members because it allows competition from the H-4 EAD holders, increases the number of H-1B workers competition with them, and there are no protections for US workers in the H-4 EAD rule.
- DHS was not authorized by congress to grant EADs to H-4 visa holders
Both of these arguments may sound familiar, they were also raised in the STEM OPT extension litigation. You may recall that that case eventually resulted in the old STEM OPT extension rule being vacated. BUT, remember that the court only vacated that rule because they felt the rulemaking process was deficient, not because the of the merits of the case. A new STEM OPT regulation was finalized just in time and has been in place since last year.
The H-4 EAD rule went through the full rulemaking process, so it is unlikely that the rule would be vacated for the same reason that the old STEM OPT rule was.
Now that the Trump administration has taken office, they filed a motion last week to request an extra 60 days to submit their brief in response to the Save Jobs USA brief filed in January.
Some media outlets are claiming that the Trump administration’s motion was filed “to revoke EADs for H-4 visa holders.” This is 100% not true. The Trump administration’s motion was filed simply to request time for incoming leadership personnel to consider the issues. The Trump administration has not asked the court to withdraw the H-4 EAD as was wrongly reported today.
The full text of the Trump administrations’s motion is as follows:
“Pursuant to Fed. R. App. P 27 and this Court’s Circuit Rule 27, and for the following reasons, Defendant-Appellee respectfully requests that this Court hold this case in abeyance for sixty (60) days, up to and including April 2, 2017. The abeyance request is consented to by Appellant.
1. This case involves an Administrative Procedure Act challenge to the Executive’s legal authority to issue, through notice and comment rulemaking, rules permitting aliens not otherwise unlawfully present in the United States and not otherwise barred by Congress from working while in the United States to apply for and receive employment authorization from the Department of Homeland Security. Plaintiff-Appellant challenges the Department’s application of this authority to promulgate a rule, Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10284-10312 (Feb. 25, 2015), which permits certain so-called H-4 visa holders,1 see 8 U.S.C. § 1101(a)(15)(H), to apply for, and if deemed eligible, to receive work authorization from the Secretary of Homeland Security.
2. Although the District Court dismissed this case for lack of Article III standing, it stated in dicta that “it will also nevertheless briefly discuss the merits of Plaintiff’s [Administrative Procedure Act] claim.” App.-108. 1 H-4 visas are visas issued pursuant to 8 U.S.C. § 1101(a)(15)(H), by United States Citizenship and Immigration Services to immediate family members (spouse and children under 21 years of age) of H-1B visa holders. See 8 U.S.C. §§ 1101(a)(15)(H). That district court’s dicta opined that: “Congress has delegated substantial authority to DHS and its predecessor agency to issue employment-related immigration regulations, as part of the broader scope of its power to enforce the [Immigration and Nationality Act] and issue rules governing nonimmigrants[;]” that even if it had not, the Secretary’s interpretation of the relevant provisions of the Immigration and Nationality Act, 8 U.S.C. §§ 1103 and 1324a(h)(3), was a reasonable interpretation of that authority under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984) and this Court’s precedents interpreting Chevron; and that the challenged Rule implemented pursuant to this authority was no arbitrary, capricious or manifestly contrary to the Immigration and Nationality Act. App.-108-09. The district court’s dicta concluded that “in light of the broad delegation of authority Congress conferred to DHS to set rules regarding employment authorization in §§1103(a) and 1324(h)(3),and its thorough consideration of the relevant factors in its decision-making, the court would likely conclude that [the Department of Homeland Security’s] interpretation of its authority under the [Immigration and Nationality Act] is not unreasonable, and the H-4 Rule is a valid exercise of this rulemaking authority.” Id.
3. The majority of Appellant’s brief addresses these merits issues. The federal government respectfully requests a 60-day abeyance of the case, to and including April 2, 2017. The requested extension is necessary to allow incoming leadership personnel adequate time to consider the issues.
5. Appellant’s counsel has authorized us to state that they consent to this extension motion.”
I know many people are worried about all the possible changes being tossed around. Much of it is just rumors. And many of the changes being proposed (like the bill that the media has wrongfully claimed raises the prevailing wage to $130,000 for H-1B workers) are done for political reasons, not necessarily because they have a chance of passing both the Senate and the House and being signed into law by the President.
We may eventually see changes coming, but let’s not get hysterical when nothing has actually happened yet. Keep Calm and Stay Tuned!