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H4 EAD Lawsuit Dec 2019 Updates – Rehearing Requests, Court Order

As you all know, certain H4 Visa holders are eligible to apply for H4 EAD to work in US. The EAD provision for H4 holders was challenged in court by ‘Save Jobs USA’ in 2015.  If you look at the H4 EAD lawsuit history, updates, the case was in different courts over the years. Recently, in Nov 2019, the Appeals Court gave judgment on the aspect of “standing in the case”, which said that ‘Save Jobs USA’ has standing in the case and it has to be taken up by District court for next steps. 

In the last couple of weeks, since the judgement, some requests were made in court by both DHS, Immigration Voice, and Save Jobs USA asking for re-hearing, extensions and court has given order on one of them and yet to give decision on other. Let’s look at these details in this article.  Before we dive in, as a background, you should read H4 EAD Court Judgement – Save Jobs has Standing.  

Rehearing is an important aspect of judicial system, let’s first look at what the official rule says.

Rehearing Rule by Supreme Court – 45 Days

As per US Supreme Court Rules, the parties in a case/ lawsuit get 45 days from the date of judgment to ask/ appeal for rehearing of the case. See below. In the H4 EAD Lawsuit, as per the judgment, 45 days from Nov 8th, would be December 23rd, 2019.   

US Supreme Court Rule of 45 Days for Rehearing

H4 EAD Lawsuit Dec 2019 : Summary of Updates, Motions, Orders

 Below is the timeline of events in the H4 EAD Lawsuit and short summary of the actions at each step.

DHS asked for Extension to file Rehearing Petition

  • On Dec 19th, 2019, DHS submitted a motion to extend the time to file a petition of re-hearing with the court.  
  • They asked for 45 days extension until Feb 6, 2020 to file the same.
  • As per the general rule (stated above), DHS only gets 45 days, which is until Dec 23, 2019 to file the rehearing petition. DHS stated in their motion that they need to coordinate with USCIS and other agencies, so it needs more time, hence asking for extension of the deadline. See below from the document file by DHS
45 Days Extension of Date - DHS Request Court Case H4 EAD

‘Save Jobs USA’ opposes the Motion to Extend, Rehearing Petition

  • On the same day Dec 19th, 2019, Save Jobs USA responds to the motion filed by DHS saying that DHS does not need more time and they bring back the origins of case saying that H4 EAD Lawsuit was filed in April 2015 .
  • Save Jobs USA states that since April 2015, their members are suffering injury and DHS has delayed the case multiple times.
  • They argue that 45 days extension for a 45 days standard rule is unacceptable. Also, they quote that there is nothing of exceptional importance in the case to give an extension as the judgment was only for the standing in the case.
  • They conclude that DHS’s motion should be denied. ( see below )
Save Jobs Motion to Deny the DHS appeal Dec 2019

DHS responds to Save Jobs, asks for extension of 45 days

  • Again, on the same day, Dec 19th, 2019, DHS responds to the Save Jobs’s brief supporting their motion to extend by 45 days.
  • They raise the points like ‘doctrine of competitor standing’ and quote few cases related to the same. Also, they re-iterate their complexities of the leadership changes in the DHS org and the communication process within sub-agencies such as USCIS. 
  • They state that DHS is not trying to delay, but need more time for coordination, etc. and again ask for 45 days extension until Feb 6, 2020 to file the same. See below.
DHS asking for 45 days extension again in reply brief

Court gives Order – Rejecting the 45 Days Extension request

  • On Dec 20th, 2019, Court gave an order denying the motion to extend time of 45 days to DHS.  DHS did not get any extended deadline and they had to submit their petition for rehearing of their case by Dec 23rd, 2019. See below court order.
  • DHS did not submit the rehearing petition by Dec 23rd, 2019.  
Court Order - DHS Motion to Extend Denied in H4 EAD Lawsuit

Immigration Voice and Team files the petition for Rehearing of Case

  • Exactly on the last day of the deadline, which is Dec 23rd, 2019, Immigration Voice and the intervenor team file their petition requesting rehearing of the case.
  • Argument Points by Immigration Voice in H4 EAD Case :
    • H4 EAD Rule-making Anonymous Comments : They say that court relied on anonymous, unsigned, unsworn comments submitted in the notice and comment process that were part of the H4 EAD rule-making, which stated that H1B holders are less likely to leave, if H4 EAD rule is passed.  The court cannot verify the people who wrote these comments and if they were really on H1B, so it cannot be used as evidence for the judgment as they are anonymous.  They say that it is legal error to use these comments as evidence and they quote another case that is on that line.  See below screenshot.
    • Affidavit, Factual Evidence – Exceptional importance :  They quote few past cases and say that there needs to be factual evidence and this is  of  “exceptional importance” for the rehearing of the case. They also state that some of the previous cases were rejected by the same court and Supreme court due to lack of factual evidence.
    • Save Jobs Affidavits : They quote that the affidavits filed by Save Jobs USA contained no evidence to state that H4 EAD rule would cause an increase in competition from H1B Holders. 
Immigration Voice Brief for Rehearing H4 EAD Case

We are yet to hear back from the Court on the Rehearing request. Due to Holiday Season, there could be delays…

What do you think of the rehearing request in H4 EAD Lawsuit ?

Below are the various updates timeline for your reference from Court website

H4 EAD Lawsuit updates Summary - Dec 2019


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