The DC Circuit Court of Appeals has allowed the Department of Homeland Security to once again delay its response to a lawsuit filed by Save Jobs USA, which aims to revoke work authorization for H-4 visa holders.
The Obama administration granted work authorization to H-4 visa holders whose spouses were on track to gain permanent residency. About 179,000 people, overwhelmingly women from India, were granted H-4 EAD. The Trump administration indicated its intent to end the program shortly after the president took office in 2017, but has dragged its heels since. The Department of Homeland Security indicated last August that senior officials were actively considering a Notice of Proposed Rule Making, which would rescind H-4 work authorization.
Separately, the DC Circuit Court of Appeals has allowed DHS several extensions for its response to the Save Jobs USA lawsuit. It once again allowed an extension Jan. 23, giving DHS an additional month to respond.
DHS had filed a motion with the court, noting that the government shutdown meant that none of its attorneys could work on a response, even in a voluntary capacity. The agency was slated to enter a response by March 15, but now has until April 15.
Meanwhile, in a rare move, the Circuit Court has also allowed Immigration Voice to serve as an intervenor in the lawsuit. Save Jobs USA has opposed the intervention on Immigration Voice, which supports continuing the H-4 EAD program.
“This is a major development because the Court of Appeals does not typically allow a party to intervene at the appellate level and it is significant that the court granted our motion to intervene,” noted Immigration Voice, a non-profit advocacy group for highly-skilled foreign-born workers. “That indicates the court has some concern (and with good reasons) that our interests will not be adequately represented by DHS/Government,” noted the organization.
Immigration Voice must file its response by March 25 to the fresh suit filed by Save Jobs USA in January.
In its fresh 77-page filing Jan. 18, Save Jobs USA questioned whether DHS has the authority to grant work authorization to alien residents, and whether such authorization unfairly impacts the American labor market. “This claim of sweeping agency authority has widespread ramifications, and threatens to eviscerate the entire system of labor protections for American workers in the immigration system,” said the organization.
“Save Jobs USA’s members represent the roadkill of our broken immigration system,” claimed the organization, citing Southern California Edison’s decision in 2015 to replace 540 of its permanent employees with guest-workers from India on H-1B visas.
The lawsuit states that — in addition to the 179,000 H-4 EAD workers added to the labor pool — H-1B workers who might have ordinarily gone back to the home country are now staying on and renewing their visas, again over-burdening the American labor pool.
“DHS is conferring an incentive (spousal employment) on those competitors so that more of them will remain in competition with Save Jobs USA members,” claimed the organization.
Save Jobs USA also noted: “Unlike their H-1B spouses, aliens working under the H-4 Rule can work anywhere, in any field, and the H-4 Rule contains no protections for American workers.”
The organization noted that many H-4 EAD workers were employed in technology, and therefore in direct competition with its members.
Advocates for H-4 EAD note that many H-1B spouses have skills higher or equivalent to their husbands. About 5 percent have created businesses which employ American workers, according to a poll conducted by SaveH-4EAD, an advocacy organization. Many have also contributed to the U.S. economy by buying homes and paying taxes, noted the organization.
Sens. Kamala Harris and Kirsten Gillibrand have written to DHS and USCIS to continue H-4 work authorization. Rep. Pramila Jayapal, the sole Indian American woman in the House, has led a coalition of 130 members of Congress seeking to continue work authorization. And Reps. Anna Eshoo and Zoe Lofgren, who represent portions of the Silicon Valley, have introduced legislation to continue H-4 EAD.