The challenge over the rule providing work authorization for spouses of certain H-1B workers who are in the Green Card process finally will be heard before the U.S. Court of Appeals for the D.C. Circuit on September 27, 2019.
For nearly three years, since the Trump Administration made it clear that it planned to rescind the policy permitting issuance of H-4 Employment Authorization Documents (EADs), spouses of H-1B workers with H-4 EADs have been living with a “Sword of Damocles” over their heads – fearing their work authorization could be eliminated at any time. Some have put their lives “on hold” because of the economic uncertainty and others are finding it difficult to obtain job offers because companies are hesitant to invest in training people who might soon lose their work authorization.
In 2015, Save Jobs USA, a group of technology workers who claim to have been displaced by foreign nationals with H-4 EADs, challenged the Obama Department of Homeland Security’s (DHS’s) authority to enact the H-4 EAD Rule. Eventually the case landed in the D.C. Circuit Court of Appeals. The Trump DHS has demonstrated reluctance to defend the rule because of its plan to rescind it – opting to regularly request “pauses” in the litigation. To date, DHS has requested more than six “pauses” in the litigation based on its assertions that a new rule rescinding H-4 EADs would soon be published and that publication would moot the lawsuit. However, on September 27, 2019, two and a half years after it was originally scheduled, oral argument in Save Jobs USA v. United States Department of Homeland Security will take place. The Court decided to move forward over the DHS’s objection.
In its most recently denied request for yet another pause, DHS stated the rule is still going through the regulatory process and the earliest planned date for publication in the Federal Register would be in Spring 2020 – although DHS noted that timeframe is “aspirational.” The rule is still being considered by the Office of Information and Regulatory Affairs (OIRA). The hold-up appears to be due to concerns about economic impact. Since February 2019, there have been eight meetings with interested parties who have been providing specific information and data about the potential impacts. Many believe the losses to the economy and losses to tax revenues would far outweigh any possible gain for U.S. workers.
To forestall the rescission (and end the uncertainty), in May 2019, Representatives Anna Eshoo (D-Calif.) and Zoe Lofgren (D-Calif.) reintroduced the H-4 Employment Protection Act to prohibit the Trump Administration from eliminating the rule. Eshoo and Lofgren said in a press release, “H-4 visa holders deserve a chance to contribute to their local economies and provide for their families. This is a matter of economic fairness and this legislation ensures it will continue.” The legislation has been referred to the House Subcommittee on Immigration and Citizenship.
For now, H-4 EAD holders can continue to renew their work authorizations. Jackson Lewis attorneys will continue to monitor developments and provide updates as they become available.