As many of you have been waiting for the H4 EAD Lawsuit News updates, court has given their judgment earlier today. In short, the judgement says that Save Jobs has standing, and the case is sent back to the district court for further consideration. The win to Save Jobs in appeals court is not ultimate win, it is just a win for them to contest further in the case by going to district court. We have summarised the key points from the court judgement documents below.
If you have not read, I highly encourage you read H4 EAD Lawsuit Oral Argument Summary, as it clearly outlines the argument points and they are pretty much what the final decision reflect. We did mention in the previous article that Save Jobs was able to demonstrate their competition clause for injury, and that is what favored the decision.
What is the final Judgment in the H4 EAD Lawsuit after Oral Argument?
As you can see below judgment document, it clearly tells that the District Court decision is reversed by Appeals court, and the case is sent back to the District court again for further proceedings. The oral argument was primarily focused on standing in the case and Save Jobs was able to establish standing in the case as they were able to prove that there is potential for competition and injury to their members. Let’s look at the key points below from summary judgement.
H4 EAD Rule Lawsuit – Court Judgment Summary – Key Points
The judgment opinion is about 14 pages long and there are three sections in it. Let’s look at them in detail.
- Section I – Overall H4 EAD Lawsuit – Case
- The first section talks about the difference between immigrant, non-immigrant visas, INA regulations related to H1B visa, how H4 visa holders cannot work in general.
- It talks about the H1B Visa process for green card, caps on the same, delays in getting green card and the H1B provisions to stay longer.
- After setting the above context, they talk about H4 holders, how they cannot work, economic hardships of their families.
- After this, they bring in Save Jobs USA and their case details indicating that district court said they lacked standing…after that Save Jobs came to Appeals court and how the case was in abeyance for quite some time and then they removed it from abeyance and also got in intervenors to be part of the oral argument.
- Section II – Argument Points that were
considered for Judgement :
- What they look for Standing in Case: The judgment starts indicating what are the basics that
are considered for concluding, if there is standing in any case. Court states that
- any “injury or harm done” to a group or party
- “if that harm is traceable”, and
- if it can be changed with favorable decision,
- then they have standing. In this context, what it means is if “Save Jobs USA” members would be harmed and can be traced in some way and if there is a favorable decision, the harm could be reduced/removed.
Jobs Argument points considered: The judgment
says that Save Jobs argument points that H4 EAD rule harms their members in
several ways by increasing competition for jobs from H1B Visa holders.
- The court talks about an article and previous case to set context and says these exact words “an individual who competes in a labor market has standing to challenge allegedly unlawful government action that is likely to lead to an increased supply of labor—and thus competition—in that market.” Essentially, what they are saying is that Save Jobs USA members would face more competition from H1B holders and the DHS action here with H4 EAD rule has increased the supply of labor in the market.
- They bring in the context of another case “Washington Alliance of Technology Workers v. Department of Homeland Security”, where similarly the union’s members were harmed by students hired to compete with them and their case had standing based on same competitor environment.
- Based on the above both, they argue that some of the H1B visa holders would leave, if there was no H4 EAD. Now, with the H4 EAD rule, they would not leave, and it creates competition for them.
- The judgment also brings in DHS’s H4 Rule making public comments and agency’s remarks, that clearly tell that many H1B holders would leave, if their spouses cannot work due to the lengthy waiting period for getting Green Card. They also quote telling that in DHS rulemaking over 60 commenters said they planned to leave US, but will remain in US because of the H4 EAD rule.
- Save Jobs Sufficient Evidence: Save Jobs provided proofs in the form of affidavits, where two members were replaced by H1B workers. The judgment states that Save Jobs has offered sufficient evidence to show an actual or imminent increase in competition for their members. Although, they have not given any proof of harm directly from H4 visa holders with H4 EAD rule as they filed the lawsuit before the rule went into effect, the affidavits are enough to establish Save Jobs members compete with H1B holders and H4 EAD rule will increase competition.
- DHS arguments in Case :
- Direct Competition: The judgment says that DHS argues that there is no direct competition, but court brings in another previous case context and tells that there will be more competition for Save Jobs members from H1B Holders.
- Already employed, not competition : They also disagree with DHS on the argument of H1B holders are already employed and not in competition as they are not looking for job. Court talks about Wash Tech case and then tells that there will be increase in supply side, etc.
- H1B Holder already in line for Green Card : DHS says that the H1B holders in the discussion with H4 EAD benefits are different from general H1B holders as the ones in Green Card line have gone through Labor process and there is no American for the same job. Court says that this point was never mentioned in court briefs and any points made for the first time in oral argument are forfeited. The court are not happy that DHS raised this issue so late in oral argument and Save Jobs could not respond to the same in brief.
- What they look for Standing in Case: The judgment starts indicating what are the basics that are considered for concluding, if there is standing in any case. Court states that
- Section III – Judgement based on the Arguments : The court concludes saying that there are complex questions about DHS authority in the case. Also, the current case would be moot (irrelevant), if the H4 EAD Rule is removed as mentioned by DHS. The court believes that it is best to send the case back to the District Court for thorough analysis and look at the merits of the case in detail.
What is the Conclusion ? What’s next for the H4 EAD Lawsuit ?
As you can see from above arguments, Appeals court gave judgment in favor of Save Jobs USA stating that the H4 EAD rule increases competition through H1B visa holders and their case has standing. This win for Save Jobs does not mean that they got the ultimate case judgment to remove H4 EAD rule in their favor, all they got is a win in Appeals court for them to go back to District Court and contest the case again. District court will start to look at the arguments and the case in detail. So, it will be dragged further. We need to wait for next steps. Definitely, it is not going to be quick, this will be a long process… Also, DHS said in the past that they plan to revoke H4 EAD rule in Spring 2020, we need to see on the timing and if they will be really doing it with their loss in the court…We need to wait and see…
Can you still file H4 EAD with the Unfavourable Decision in Court ?
Yes, you can still file H4 EAD as normal. Nothing changes. Today’s judgment is for H4 EAD lawsuit in court. The case is back to the beginning, where it all started, which is district court. They will look at the merits and it will be further dragged.
Check below for actual court documents. What are your thoughts?