H4 EAD Lawsuit Oral Argument September 2019

H4 EAD Lawsuit Case: Oral Argument Summary, Next steps ?

In H4 Visa by KumarUpdated : 21 Comments

Earlier today H4 EAD lawsuit case oral argument was held at 9:30 AM EST. Below is the summary, key argument points. If you need background, you can read H4 EAD Lawsuit History article to get details on the timeline.

First, Save Jobs USA got the chance to present their case. Below are the key points and judges’ questions and points during the argument.

The Appeals Court Judgement on the H4 EAD Lawsuit came on Nov 8th, 2019. Read H4 EAD Lawsuit – Judgment Summary – Save Jobs Won.

Save Jobs USA – H4 EAD Lawsuit – Oral Argument – Key Points

  • SAVE Jobs USA key argument is around the point that H4 EAD holders are causing injury or harm to their members in two fronts: one, by competing with them in the market directly in computer related jobs, secondly they also help H1B holders to stay longer, providing them injury as well by increasing their competition.  They quote the evidence of affidavits of 3 people who lost their jobs to H1B holders from previous 2014 case.
  • Save Jobs also argues that the purpose of the rule and comments in the rule making, including DHS press statements related to H4 EAD tell regarding the evidence of the injury.
    • To this point, Judge asks the purpose of the H4 EAD rules does not give standing and they need evidence. The SAVE Jobs says that they have evidence in the form of comments, etc.
    • Judge asks for statistical evidence that H4 EAD holders are impacting or increasing competition.
    • The discussion goes into tangent saying District judge does not take evidence in normal cases and they only look at an Agency standing to make rule.
  • Also, Judge talk about the comments that they were made before the rule went into effect and most of them are anecdotal and does not really have any statistical data.
  • Save Jobs USA, quotes other points like H1B quota cap does not exist for cap exempt holders, so there is no limit in some cases.
  • They also share that after the rule went into effect, many jobs are posted for H4 holders on Dice.com and they say Dice is the largest technical jobs website. They read out the evidence that job postings that reads H4 EAD, OPT EAD holders can apply.
    • Judge also raises a point that H4 EAD holders can be anyone like doctors or in other profession, etc.  Judge also tells them that it is speculative and there is no evidence.
  • They talk about another case and show the relationship, where the competition was allowed to compete and that caused the injury. By then, time is up.

After that DHS lawyer gets the chance to present his argument points.  Below are the key points from DHS and judges’ questions

DHS Key Points in the H4 EAD Lawsuit Oral Argument

  • DHS starts off saying that Save Jobs USA cannot show injury as there is no evidence. Judge says, let assume DHS is right about that and asks to focus on H1B workers.
  • DHS tries to defend saying that not all H1B holders’ spouses can work and only, if they are in the Green Card process with certain conditions then their spouses can work. So, only certain H1B holders & their spouses get benefited.
  • DHS says that for such H1B holders with Lawful Permanent Residency (LPR) application in process, Department of Labor has approved saying that there is no American workers for the position and they will anyways stay in US waiting for their green card and will not compete directly.
  • Judge raises point on the 3 affidavits of SAVE Jobs USA users and how their jobs were lost previously to H1B holders.
    • DHS tries to argue that not all H1B holders are competition, judge asks, how about for those people who lost jobs to H1B holders…
    • DHS here stumbles and says “there may be some competition with some H1B holders…but not all…”…for which Judge says, that’s all they need for competition…
    • DHS tries to again defend the same point and department of labor certification.  
  • Judges say that one of them worked for Dept of Labor as secretary and they are not really fully vetted…
  • Judges say that anything that helps H1B holders to stay is considered competition for injury for Save Jobs and there is factual evidence and affidavit that 3 people lost jobs before.
    • DHS tries to argue that in that case, there is no evidence that tells that the H1B holders who replaced them were the H1B holders with LPR application in process. It is a subset of H1B holders, who may be competing and there is no evidence that tells that the subset is competing with the Save Jobs members…
    • DHS talks about the WashTech Case.
  • Judge asks why is the H4 EAD rule removal taking so long, for which DHS says, it is with OIRA and they are working with stake holders conducting meetings and the last one was in May 1st, and doing cost benefit analysis.

After that the intervenors lawyer presents his argument points.  Below are the key points from intervenors and judges’ questions

Intervenors Key Points in the H4 EAD Lawsuit Oral Argument

  • Intervenor’s lawyer says that the affidavits are from loss of jobs in 2014 and it happened even before the rule was enacted, so there is no cause and impact because of the H4 EAD rule to the affidavits filed…and it was not because of the rule.
  • Judge interrupts, if someone lost their jobs because of H1Bs, aren’t they competition…why disregard that fact, even if it was from past…The intervenor here slips and says, “ there is some competition from H1B holders…”…judge catches this point and says, it is opposite of what DHS has said, you are saying there is competition, DHS says there is no competition….is it Yes or NO….the intervenor lawyer tries to cover up and says that DHS is right and tries to correct…saying there is no direct competition…
  • The intervenor talks about comments and they are just predictions…..he talks saying that there is no increased competition….Judge, says that…If we establish competition, then it alone constitutes injury…There is no need to prove anything.
  • Judge says. It is concluded that there is competition and there is injury in fact….The intervenor tries to say, there is no proof, etc..….Judge again says there are three people who lost jobs, and there is incentive to H1B holders to stay longer… lawyer says, there is no statistics or data that they are staying….judge says, there are comments that tells that they will leave, if there is no H4 EAD…

After that legal counsel talks about the department of labor practices on how it is not really fully vetted, including YouTube videos that talks on how to get it certified…

What is the Summary of the Oral Argument today on H4 EAD Lawsuit ?

If you read through all the points raised, SAVE Jobs has emphasized that their members lost jobs and those 3 affidavits, other proofs tells them that they can be injured due to competition….DHS also could not fully justify that there is no competition because the 3 affidavits of job loss to H1Bs played a part.. …Also, the intervenor slipped and said there is some competition and tried to cover up….that’s not favorable too…. Judge at the end says, if there is proof that there will be competition, then that is good enough and there is no need to show the effect of it and analysis to be done.. while there is no statistical evidence of the injury of H4 holder directly, the loss of 3 jobs of Save Jobs members in the past stacks up against saying that there is potential competition…and the comments of H4 holders in rule making with stories telling they will leave without H4 EAD is not favorable to H4 holders….

What are the next steps in H4 EAD Lawsuit  after Oral Argument ?

The judges will again meet in conference and discuss on the case and then come with a draft opinion, which they will review again and finally release the decision in the form of court opinion…They will look at all the evidence and not just the oral argument today and then write up the opinion. It can take a week or two for this…no set time…We need to wait and see what comes out….

What are your thoughts based on the oral argument ? Your opinion ? 

   

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Comments ( 21 )

  1. Joshi

    There were never been preference to students who had spent thousands of dollars doing undergraduate from US.

    DHS should change h1b rule to give highest preference to only students had done undergraduate or PhD. Not masters.
    1.5 yr Masters exploded And cripple entire system and potentially everyone enters as master student which is gateway for H1b. Only few students really wants to do masters all the rest just want to be selected in eb2.
    If you look back 2000-2004 you won’t find any much master students and don’t see h1b lottery.

  2. PS

    I am 32 year old and I do have 10 years of experience because I started working when I was 21(doing my b.tech). Am i faking my resume? whatever you have said is so irrelevant . This forum is to discuss how H1 and H4 is not affecting jobs. I feel whoever is talented has the right to work your visa status should not matter here. US big companies are outsourcing cos of the talent that they get there. If you have the talent you will get the job , whats wrong in being competitive? you are taught to be competitive since your birth so if you work hard and improve yourselves no one is going to be replaced here and loose their jobs!

  3. Jimmy B

    Both the judges and the lawyers from DHS missed the key point pertaining to the 3 affidavits submitted by Savejobs in support of their argument that H1B holders were the reason the other people lost their jobs. It is a) Anecdotal and b) Has no conclusive proof that merely holding H1B was the reason the employment was granted to the H1B holder. It COULD also have been multiple other factors that goes into a company’s decision making process like competency, talent, experience, cross-functional skills, e.t.c.

  4. SB

    Come on please don’t support H4 EAD… first only very fraction of these applicants have knowledge and experience.. 99% candidates fake their resume big time. They just land in US get their EAD and join in jobs with 10 years exp but their age is 25 to 35. I have seen resumes where candidate is newly married or just landed in US with her husband and exp in US is 10 years. They just want to land on $100k jobs direct. It is very unfortunate and those who have real experience and who are genuine will never get opportunities. Go check all the big banks H4 EAD employee resume you will have tons of real data that SaveJobsUSA can use.
    Please be truthful for yourselves people.

    1. Kalyan

      SB, You need to be truth to yourself. I am pretty sure you didn’t land you first job without faking your resume. The point here is that you don’t burn the forest just because you see few bad apples. I don’t know the statistics but even if there are 1% genuine H4 EAD case they are worth fighting for.

    2. H4-EAD

      Did u urself went to god to get this 99% info or did god himself presented in divine form to give u the info..by the sound of it.. u seem to the be sole loser who came to US..somehow have survived but is neck down in jealousy with others who earn more & hence generalizing the 99%..& remember if this is the case then maybe 99% of offshore guys who come here are the outcome of a lottery system & favored by their managers bco they deliver veggies at their home or njoy drink parties…deal with it!!!

    3. Priya

      First u should be truthful. H4 was never an issue. It was alaways H1. Did u see where any US tech worker vent their anger on? It all H1. 50% of H1’s are fakes & low skillled outsourcing employees like u. so genuine high skilled people like me have to suffer. on top of it there are lot of physicians on H1..and they can;t fake their resume. So Stop blaming H4 when all issues point to H1. Even SaveJobs showed H1;s are competetion not H4. Thumb rule : The more a particular visa is..the more fakeness comes in.

    4. Yan

      As a H4 EAD holder, I have:
      Obtained my EAD in Mar 2019.
      Obtained my Master degree in US in 2014.
      Pursuing my PhD until 2017, with publications, presentations.
      Multiple internships while doing PhD.
      Now that, due to family reason, I am carrying a H4 EAD and working full time.

      Guess what, I have no knowledge, no experience, and faking my CV? LOL

  5. Kalyan

    I may be wrong or might have not understood it correctly but I thought the oral arguments was going to decide about Save Jobs USA’s key argument point, why they came to US appeals court, as district court said Save Jobs lacks standing, rather than current H4 EAD rule revocation in progress.

    1. SP

      That was my understanding as well.Thanks for being so articulate.I was under the impression that the court arguments were there to decide if Save Jobs had a case.And if they do, the case would again go to the former court that dismissed their case.

  6. SP

    Thank you for summarizing the oral arguments.I have some questions about the next steps in the worst case scenario.
    If the court rules in the favor if Save Jobs USA, will it be the final decision? Or does the case gets handed over to a higher/ lower court?

  7. waqar Ahmed

    Dear sir,I am Waqar Ahmed form Pakistan azad Kashmir. I am plumber and plumbing instructor. I have 11years experience. I need job and visa.I am very interested work in USA. I have all documents. Plz help me.
    Thanks

    1. SP

      Thanks for a comprehensive summary of the oral arguments. What happens if the court rules in the favor of Save Jobs USA?Would their decision be final or does the case move to a lower/ higher court?

      1. Ibad

        The lawyers failed to.mention with facts that
        1. For every job an H1b takes in USA he/she creates 2.5 new jobs for US workers.
        2. For every job an H1b takes in USA he/she supports thousands of other jobs that keep US companies competitive, jobs that would otherwise not exist or done abroa.ld for much less.

        1. Cool Prince

          They did not mention this, because the judge would ask them:

          “If the job was held by a US citizen, wouldn’t the same 2.5 job still be created? Or are H-1Bs magical when they are in the exact same job as a USC?”

          Then they would slip up and say USC can’t do the jobs that magical H-1B workers can. Then judge would throw them out of his courtroom.

          Now do you understand why they did not bring up that BS?

    2. jim

      @SB – Your comment is glib & unrelated . Fake resumes are everywhere and I have seen first hand American citizens also do the same. You cannot generalize everything & H4 EAD removal is not going to solve fake resumes problem. It’s much bigger than that & recruiters/background checking agencies need to be trained & be more uptight to weed out the fraud!

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