***UPDATE 4/1/20: The parties filed their joint status report:
Save Jobs asked the court to move forward with the case and let them file a Motion for Summary Judgement (basically they want the court to decide the case in their favor without going through the entire trial, this is a common request in the early stages of any trial).
The government told the court that it will again include the H-4 EAD regulation in its upcoming Spring Regulatory Agenda. Final DHS clearance review of the proposed rule is ongoing, and senior levels of the Department’s leadership are actively considering the terms of the proposed regulation for approval. Following conclusion of this review, DHS will sign the proposed rule and publish the proposed rule in the Federal Register. DHS would not be opposed to the lawsuit being put on hold again while the regulatory process moves forward. If the case is not put on hold, they agreed to move forward with the case.
Immigration Voice asked the court to put the case on hold pending publication of the proposed regulation. ****
In the latest H-4 EAD litigation news, we should expect both parties in the lawsuit to meet (with proper social distancing) and file updates with the court on how they wish to proceed in the litigation. The plaintiff (Save Jobs) recently filed a Motion for Summary Judgement, which is basically a request for the court to make a decision in their favor without actually going to trial. That motion was denied, which means the case will move closer to a trial on the merits. The parties have until April 1st to report to the court with a proposed schedule for the upcoming stages of the trial.
Background:
- 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 arguing that DHS does not have the authority to give EADs to H-4 holders. 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. An appeal was filed and the case has been held in abeyance at the appeals court since the Trump administration took control based on DHS’ indication that a new regulation rescinding the H-4 EAD rule was being planned. The appeal has now been going on for over two years.
- In September 2018, the U.S. workers who brought the lawsuit had enough of waiting and filed a motion with the court requesting to remove the abeyance and move forward with the case. Save Jobs USA pointed out that the even thought the case has been delayed, still no proposed rule has been submitted to the OMB. Save Jobs argued that “[j]ustice delayed is justice denied” and the longer the H-4 Rule remains in effect, the longer Save Jobs USA members and other American workers will “suffer injury from the presence of foreign competitors in their job market.” They also pointed to the vagueness of DHS’ previously submitted reports regarding the status of the proposed regulation and exactly what DHS plans to propose. Because DHS has yet to make good on its promise to propose a new regulation, Save Jobs wanted the court to decide the case, specifically the question of whether DHS has the authority to permit employment without Congress.
- DHS filed its response in opposition back in September 2018. DHS stated that its senior leadership reviewed the proposed rule and returned it to USCIS this month for revisions. When the necessary revisions are incorporated, USCIS will return the proposed rule to DHS for final clearance and submission to OMB. DHS claimed in its filing that it was making “solid and swift progress” in proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization. At that time, DHS indicated that a proposed rule would be submitted to OMB within three months.
- In December 2018, there was still no proposed rule submitted to OMB so the court decided to grant Save Jobs’ request to remove the abeyance and move forward with the case.
- New briefs were filed by Save Jobs, DHS, and Immigration Voice
- Oral argument was held September 27, 2019 and the court made its decision ONLY on the issue raised in the appeal, which was whether Save Jobs had “standing” to bring the lawsuit (ie whether Save Jobs might be able to prove that the US workers were harmed by the H-4 EAD). The court found that Save Jobs had offered sufficient evidence to show an “actual or imminent increase in competition,” through its members’ affidavits. This caused the court to reverse the lower court’s decision that had dismissed the lawsuit and send the case back to the lower court for further proceedings.
- Now that the case is back at the lower court, a judge may finally get to the heart of the matter, which is whether the regulation that created the H-4 EAD exceeded the authority of DHS’s power to grant employment authorization. At the same time, plans are still underway to issue a new regulation to eliminate the H-4 EAD.
- The denial of the motion for summary judgment is not unusual and just means that the case can continue on.
Although the litigation is moving forward, the H-4 EAD remains available. You can continue to file new H-4 EADs and renewals.
And, when the regulation is finally proposed, remember it is just a proposal. It also does not change existing law. You will continue to file new H-4 EADs and renewals while the regulatory process is under way.