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
- 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
- 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
- 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 ?