Background of Litigation
In November 2014 President Obama issued the Immigration Accountability Executive Order which included actions to curb illegal immigration at the border, prioritize the deportation of felons, avoid separation of families, and “streamline legal immigration to boost our economy.” Among other things, the order acknowledged the fact that under the current immigration system, individuals in the employment-based permanent residency process often wait years for an immigrant visa to become available to them. The order directed DHS to make regulatory changes to allow workers who are far enough along in the process to move or change jobs more easily, and to give their spouses the ability to apply for work authorization. Wondering if any of President Obama’s Executive Actions apply to you?
In April 2015, an organization called Save Jobs USA filed suit challenging the H-4 EAD rule, and asking for an injunction. Save Jobs identifies itself as a group of IT workers who had worked for Southern California Edison until they were replaced by foreign workers on H-1B visas. Save Jobs argued that there isn’t any statutory authorization for an H-4 visa holder to work and that the rule’s purpose was simply to increase foreign labor by drawing more people to the H-1B program. The group alleged that the H-4 work rule hurts its members by increasing the number of “economic competitors” and depriving them of protection from foreign labor. However, the court denied the injunction, stating that the group lacked standing in the case. The denial was also based on the court’s opinion that it would likely conclude that the DHS’ interpretation of its authority under the Immigration and Nationality Act was not unreasonable and that the H-4 rule was valid.
After completion of the regulatory process, DHS began accepting applications for H-4 EADs, beginning on May 26, 2015.
In September 2016, Save Jobs appealed to the D.C. Circuit. Save Jobs USA v. DHS, Case Number 16-5287, Appellate Court, DC Circuit.
In February 2017, the court granted DHS a 60-day pause of the proceedings to allow officials with the incoming Trump administration to consider the issue.
On April 3, 2017, the Department of Homeland Security (DHS) asked the court to hold the case in abeyance for up to six months, saying the Trump administration needs time to decide on revising the rule. DHS said their request would serve judicial economy (save the court time and costs), while allowing the administration the opportunity to determine whether it will release a new rule on the matter, which would make the court case moot. DHS said that should the abeyance be granted, the government would provide updates to the court every 60 days and will notify the court should the government reach a determination before the deadline on whether to retain the rule or issue a modified version.