*****IMPORTANT! ******
I have just posted a survey at http://immigrationgirl.com/survey-for-h-4-ead-holders/ in order to collect data on the use of the H-4 EAD. This will ultimately support the comments that will be needed in any new regulation proposed that may attempt to rescind the H-4 EAD. If you are an H-4 EAD holder, please complete the survey and share with your friends!
I’ve been getting quite a few questions on Facebook and Twitter regarding the status of the H-4 EAD litigation. The court’s last order was to grant DHS’ request to hold the case in abeyance, and the parties were directed to file their next motions by yesterday, January 2nd.
Both parties did respond to the court with their motions on December 22, 2017.
A little history:
- A month before the rule that would allow certain H-4 visa holders the opportunity to work was set to take effect, Save Jobs USA filed a lawsuit seeking to stop the rule from being implemented. The plaintiff in the lawsuit is a group of computer workers who were formerly employed at Southern California Edison.
- Save Jobs argued that the H-4 EAD should have been issued through legislation, not through regulation and therefore the rule should be vacated. The group further alleges that they were displaced by H-1B workers and will now face even more competition from H-4 EAD 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.
- Save Jobs USA immediately filed an appeal to the United States Court of Appeals for the District of Columbia Circuit…and then the election happened.
- First, the government requested an extra 60 days to respond to the appeal to allow “incoming leadership personnel adequate time to consider the issues.”
- Then, the government asked that the case be held in abeyance for another 180 days to give DHS time to reconsider the H-4 Rule and decide whether issuance of a notice of proposed rulemaking relating to it is appropriate. The government indicated that it would update the court every 60 days concerning the Department’s review and inform the Court promptly should it determine whether a new rulemaking is or is not appropriate before 180 days elapses.
- The court granted the stay on June 23, 2017 and directed the parties to file further motions on how they wish to proceed by September 27, 2017.
- Save Jobs filed its Motion and requested the Court to reschedule briefing and oral argument so that the case can be finally concluded.
- DHS then requested the appeals Court to hold the H-4 EAD case in abeyance AGAIN through December 31, 2017, to permit it to complete the review mandated by Executive Order 13,788 and also to adequately assess how to act regarding the H-4 Rule. DHS had to refocus its review of the H-4 Rule to ensure that it meets the newly announced priorities and to decide whether to undertake a new rulemaking concerning the H-4 Rule and comply with the President’s Order. The President’s Buy American and Hire American Executive Order provides that “[i]n order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).” Id., § 2(b). To effectuate this policy, the Order instructs the “Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security” to, “as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system. . . .” In that request DHS indicated that it was still evaluating next steps, and planned to announce its intentions in the fall Unified Agenda.
- On November 17, 2017, the court granted DHS’ request to hold the case in abeyance and requested both parties to submit new motions by January 2, 2018.
As mentioned above, both parties did submit their motions on December 22, 2017 and DHS did announce its intentions in the fall Unified Agenda. DHS plans to propose a new regulation in February 2018 to rescind the H-4 EAD rule.
The December 22, 2017 motion by DHS requested the court to hold the case in abeyance one more time until a new regulation can be implemented.
The motion filed by Save Jobs asked the court to issue a decision on the merits of the case, ie Save Jobs wants the court to decide whether DHS had the authority in the first place to permit H-4 holders to work without Congress specifically allowing it.
The court will once again rule on the competing motions, probably by the end of January. I would expect the court to grant another abeyance of the case since a new regulation rescinding the H-4 EAD will make the whole case moot.
What can be done at this time to save the H-4 EAD?
- plan to comment on the proposed regulation when it comes out next month. Comments should be well-reasoned and supported by facts. It isn’t enough to say that we want the H-4 EAD so H-4 spouses can work. WHY is it important that H-4 spouses who are one step away from a green card be allowed to work? HOW does this benefit the United States? WHY does the H-4 EAD have no negative impact on US workers? etc.
- ask your legislator to propose a law granting EADs to H-4 holders who are one step away from being permanent residents AND to fix the green card backlog, which is the only reason we need the H-4 EAD in the first place.
*****IMPORTANT! ******
I have just posted a survey at http://immigrationgirl.com/survey-for-h-4-ead-holders/ in order to collect data on the use of the H-4 EAD. This will ultimately support the comments that will be needed in any new regulation proposed that may attempt to rescind the H-4 EAD. If you are an H-4 EAD holder, please complete the survey and share with your friends!