H4 ruling

Members of the organization Immigration Voice are shown meeting with Sen. Mike Lee, R-Utah, who has introduced S.386, the Fairness for High-Skilled Immigrants Act, in the Senate. Indian American attorney Cyrus Mehta summated the court’s ruling, saying it had determined that allowing H-4 visa holders to work theoretically means that H-1B workers would stay in the U.S. – rather than leaving – and compete for American jobs. (photo via Twitter)

In a long-awaited decision, the DC Circuit Court of Appeals issued a decision Nov. 8 in the Save Jobs USA case, finding that American workers were unfairly impacted by work authorization for H-4 visa holders.

Indian American attorney Cyrus Mehta summated the court’s ruling, saying it had determined that allowing H-4 visa holders to work theoretically means that H-1B workers would stay in the U.S. – rather than leaving – and compete for American jobs.

“It's a rather crude way of affirming plaintiffs standing by a circuit court – if you allow H-4s to work, more H-1Bs will stay and thus compete with American workers,” tweeted Mehta.

The Circuit Court threw the case back to the DC District Court for a second review of the matter. H-4 work authorization is given to the spouses of H-1B visa holders who are on track to receive a green card. The program impacts more than 100,000 people, primarily women from India.

Immigration Voice, which served as an intervenor in the lawsuit brought by the ad-hoc organization Save Jobs USA against the Department of Homeland Security somewhat misguidedly declared a victory in the case. “We were able to succeed in our stated goal of preventing this lawsuit from getting rid of H4 EAD from 2017 to now, and hopefully for much longer,” stated the organization, adding: “The court did not find that DHS overstepped their authority in issuing relief to our members and remanded the issue to the lower court.”

Immigration Voice acted on behalf of Indian Americans Sudarshana Sengupta and Anuj Dhamija, who currently have work authorization through the H4 EAD program, an Obama-era initiative. On Nov. 6, Immigration Voice filed a notice with the Circuit Court of Appeals, which noted that Sengupta was recently approved to receive a green card, along with her husband, and should receive her green card shortly. Once she does, she will no longer depend on her H-4 visa for work authorization.

In his ruling on behalf of the three justices who heard the case, Judge David Tatel noted that American workers were unfairly impacted by H-4 work authorization, because they not only faced increased competition of H-4 visa holders but also their H-1B spouses who now could stay on longer in the U.S.

“Absent the rule, argues Save Jobs, at least some H–1B visa holders awaiting permanent residence would leave the United States — exiting the labor pool — because their spouses are unable to work.”

“By authorizing H–4 visa holders to seek employment, Save Jobs continues, the rule removes a key obstacle to H–1B visa holders remaining in the United States throughout the immigration process, meaning that more H–1B visa holders will stay and compete with Save Jobs’ members than otherwise would have,” wrote Tatel.

He noted that more than 60 commenters had written — during the comment period for the original rule in 2014 — that they had planned to move out of the U.S., but would instead remain and pursue lawful permanent resident status as a result of the new rule. Tatel found that the plaintiffs had adequately shown that there was an “actual or imminent increase in competition.”

Tatel also found that Save Jobs USA had sufficiently demonstrated that its members were forced to compete with H-1B visa holders. Two of its members had declared that they worked as information technology specialists at Southern California Edison for more than 15 years until

they were fired and replaced by H-1B visa holders.

A third member worked as a system analyst at Southern California Edison for 20 years until she was also fired and replaced by an H-1B visa holder.

“All three have been actively looking for new jobs in the technology sector, including by attending job fairs, participating in job placement programs, and submitting job applications,” noted the lawsuit. The three were fired in 2015.

DHS, the defendant in the lawsuit, has argued that Save Jobs USA members were injured by the H-1B visa program, not by the work authorization rule for their spouses.

“We disagree. Save Jobs has shown that the rule will cause more H-1B visa holders to remain in the United States than otherwise would—an effect that is distinct from that of the H-1B visa holders’ initial admission to the country,” wrote Tatel, who has served on the DC Court of Appeals since 1994.

The court said it recognized that any decision by the lower court would be moot once DHS issues its final rule rescinding the H-4 work authorization program. That proposal was introduced at the beginning of the Trump administration in 2017. DHS has now said it will not issue a final rule until at least March of 2020.

“Fed Appeals Court finally agrees American workers have something to lose from #H4EAD who take American jobs,” tweeted the ad hoc organization American Workers.

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