H-4 visa holders anxiously awaiting a court decision on whether their work authorization will be continued remained in a quandary as the Department of Homeland Security and Save Jobs USA filed opposing motions Dec. 22 in the DC Court of Appeals in a lawsuit.
The lawsuit — filed by Save Jobs USA last year — seeks a court injunction to end work authorization for more than 100,000 H-4 visa holders, primarily Indian women. H-4 visas are given to the spouses of H-1B employees; under a 2015 executive order by former President Barack Obama, H-4 visa holders whose spouses were on track to get a green card could get an employment authorization document.
In its lawsuit, Save Jobs USA claimed that work authorization for 100,000 immigrants strips American workers of those job opportunities.
John Miano, a labor attorney representing Save Jobs USA, told India-West that the key issue to be determined by the lawsuit is whether the president has the authority to determine work authorization for aliens in the U.S. “We’re hoping that the court will rule that the president does not have the authority to decide on work authorization, absent of Congress, undermining American workers,” said Miano, noting that – currently – employment authorization for immigrant workers is determined at the whim of the administration.
Miano could not answer a question on how many American workers were displaced by H-4 visa holders, saying that data on such workers was lumped in with statistics on H-1B workers.
He noted that 100,000 EADs had been issued to H-4 workers; another 500,000 total to H-1B employees; and another 100,000 to foreign students who are on the optical practical training – OPT – program after graduating from an American university.
“This adds up. When you look at the entire impact, it’s huge,” the attorney told India-West.
Miano said he had not thought yet about how H-4 EAD rescission could be implemented, including whether such workers would immediately lose their jobs. “We haven’t thought that far ahead. We just want to win the lawsuit,” said Miano, who represents about 400 former Southern California Edison employees who lost their jobs in 2015 and were replaced by H-1B employees.
Last month, the Trump administration signaled its intent to rescind Obama’s executive order.
In its Dec. 22 motion to the court, DHS — the defendant in the lawsuit — said it is issuing a proposed regulation seeking to rescind work authorization for H-4 visa holders. The proposed regulation will be issued in February, and – following a public comments period and time to review the responses — DHS predicted it would be able to publish the final regulation in the summer of 2018.
In its motion, DHS said it would update the court by July 1, and asked the three-member body – which includes Indian American justice Sri Srinivasan – to hold off its ruling on the Save Jobs USA lawsuit.
DHS has requested three previous abeyances in the case. In the Dec. 22 motion requesting a fourth abeyance, DHS, noting its proposed rule for rescission of H-4 work authorization, summated: “Such action may obviate the need for judicial review of the current rule, and will potentially moot this appeal, as the new rulemaking will supersede the current rule.”
In the motion, DHS did not state how it intends to rescind work authorization, nor the details of implementation, such as whether EADs would be revoked immediately or allowed to expire. Also not known is whether DHS will allow a grace period for current H-4 EAD holders to renew their work authorization.