As you all know USCIS has closed their offices for in-person activities with COVID-19 and many are waiting for pending approvals, interviews, biometrics, etc. …at the same time USCIS is also dealing with H4 EAD lawsuit that is going on for few years now with Save Jobs USA. With COVID situation, we have not been able to post detail updates on this case, since February 2020. In this article, we will summarize the entire action of items since the case was returned to District court in Feb 2020 until today.
Important Note: Firstly, there are some misleading headlines circulating in news media and other blogs that “DHS has asked court not to revoke H4 EAD and their stance has changed”. Unfortunately, the truth is twisted by all of them and they fail to add context to DHS’s statement. In fact, DHS has only said in their cross-motion document that H4 EAD does not cause “irreparable injury” that creates compelling reasons for issuing an injunction to stop issuing H4 EAD as requested by Save Jobs. If you do not add context, the meaning fully changes. Check below details for the actual facts and supporting documentation.
Before we jump in, let’s quickly look at the timeline of events, so that you look at the bigger picture on what happened in the last two months in District court since the case was moved from Appeals court.
Timeline of H4 EAD Lawsuit in District Court from Feb 2020 until May 5th, 2020.
Last year Save Jobs USA won in Appeals court regarding standing in case and the original lawsuit was sent back to District Court to further look at the merits. Below is the high level timeline summary of the activities in District court. We will look at the details of each of these further in the article.
- Feb 7th: District Court gets the H4 EAD Lawsuit for Review. Old case re-opened.
- Mar 21st : Save Jobs USA Files a motion for Summary Judgement ( asking for final decision)
- Mar 21st : Court denies the motion for summary judgement and asks for joint status reports, joint schedule for further proceedings in case.
- April 1st : Joint Status report submitted in Court with latest status from each parties.
- April 13th : Court asks DHS and Intervenors to file motion for stay (suspend activities in case) by April 20th , and sets other deadlines for April 27th, May 4th.
- April 20th : Intervenors / Immigration Voice files motion for stay
- April 27th : SAVE Jobs USA files response Opposing motion for stay and asking for Preliminary Injunction, if stay happens, to stop issuing new H4 EADs and renewals.
- May 4th : DHS and Intervenors, Immigration Voice file for Cross-motion against Injunction. Many media outlets post misleading headlines confusing uses that DHS stance changed.
Feb 2020 – Case Moved to District Court
After the appeals court decision in November 2019 on H4 EAD lawsuit that Save Jobs has standing in the case, there were re-hearing requests that were submitted by DHS, Immigration voice in December 2019 that were denied by the court. Ultimately on February 7th, 2020 Appeals court formally moved the case to District Court for further review to look at the merits of the case.
March 2020 Updates : Save Jobs asks for Summary Judgement, Court Denies
Save Jobs USA submitted a 35-page document on March 20th, 2020 asking for summary judgement (meaning final judgement) stating that DHS exceeded their authority and issued H4 EAD rule. See below.
They put in arguments saying that H4 EAD was created to retain H1B holders, who would otherwise leave the country. They provide multiple arguments on the point that H4 EAD rule was created in excess of DHS authority and US Congress did not give them that authorization for giving work authorization for aliens (foreign nationals). They argue that H4 EAD rule creation was unconstitutional and DHS reversed a policy in place for 45 years and added 179,600 new workers in first year.
District Court denies the motion for summary judgement by Save Jobs USA and asks for joint status report by all parties in case and gives schedule of dates. See below
April 2020 Updates – Joint Status Reports filed, Stay Order, Cross Motion
On April 1st, 2020, a Joint Status Report was filed with details on each of the party’s current status and their updates on the case.
Joint Status Report by Save Jobs, DHS, Intervenor
The below status report was submitted on April 1st, 2020.
- Save Jobs Status: Save Jobs updates that inaction from DHS to revoke H4 EAD rule and delays in last 5 years are not helping their members and asks for summary judgement( final judgement). They highlight one point that appeals court knew the H4 EAD Revoke rule making was in process, still they asked to view the merits of the case indicating the delays of DHS. They argue that H4 EAD rule removal has been on Unified agenda since 2018 and nothing changed and there is no assurance that it will be published. Given the delays in five-year old case, they want summary judgement soon and need schedule for hearing as in previous case. See below
- DHS Status: DHS updates that it plans to have H4 EAD revoke rule in Spring 2020 regulatory agenda that will make this case moot ( of no significance to Save Jobs). They have already submitted rule for OMB and OIRA for review and it is in final clearance review by DHS. Also, senior leadership is actively considering to publish it to public for comments (NPRM) and plan to publish the proposed rule to Federal register as per process. Also, they say will not oppose motion for stay ( suspending the case activities ) by Intervenor & Immigration Voice.
- Intervenor & Immigration Voice Status : Intervenor & Immigration voice updates that based on the current status by DHS on the rulemaking to revoke H4 EAD, they would like to request for motion to stay ( suspend actions in the case) as the process is on-going and it is the best option to save time and resources of Court and parties involved.
On April 13th, Court gave these dates
- By April 20th, for Intervenors & Immigration Voice to file motion for stay
- By April 27th, for Save Jobs to file their opposition to the same
- By May 4th, for Intervenors to file their reply to opposition
Stay Order Filed by Intervenor, Immigration Voice
On April 20th, intervenors & Immigration Voice filed a stay (basically suspend activities in the case) stating that DHS has H4 EAD revoke rulemaking in process and if that is done, the case will be moot (no practical value for Save Jobs). Also, they say there is pending case with Supreme court on DACA that can have influence on this case as mentioned by Save Jobs, so it is better to stay (suspend activities in the case) to save time and resources of court and parties. They provide arguments and reason to stay the case by quoting other case examples. See below screenshot on the same.
Cross Motion for Preliminary Injunction Filed by Save Jobs USA
On April 27th, Save Jobs USA opposing the motion to stay by Intervenors & Immigration voice, asks for an injunction order, if stay is given by court, asking DHS to stop issuing new H4 EADs and extensions of H4 EAD during the stay period of case ( meaning when the activities in the lawsuit are suspended during wait of the H4 EAD rule revoke process) to avoid injury ( harm) to their members. See below screenshot.
They present arguments stating that not even a proposed H4 EAD revoke rule is published and the delays by DHS is close to 2 years for the same rulemaking and nothing changed. The argument by intervenors regarding moot (of no significance to Save Jobs) is based on big leap of faith as Trump Administration failed to publish anything for close to 2 years and intervenor cannot explain why this time it will be different in Spring 2020 regulatory agenda. They say that their members continue to face injury (harmed) due to H4 EAD as it affects their members computer job market. They say that 66% of H4 workers are in technology based on a report and it hurts their members. They say, if Court wants to give stay, they request for Injunction order (basically an order that stops) to stop issuing of New H4 EADs or renewals of H4 EADs.
May 2020 – Reply to Cross Motion by DHS, Immigration Voice
On May 4th, 2020 DHS and Intervenors & Immigration Voice filed their reply to the cross motion for preliminary injunction, below are their details.
Intervenors Response to Save Jobs Injunction Request
- Intervenors & Immigration Voice say that Save Jobs USA did not put in any proof or arguments that tells that H4 EAD rule revoke will not happen and their request for injunction does not provide any proof of irreparable harm to its members.
- They insist a stay (suspending current lawsuit activities until the rule making happens) is the right thing. They also say that Save Jobs claims the H4 EAD rule will not be revoked is not true as DHS plans to do it as per proposal and publish in Spring 2020 regulatory agenda.
- Also, they say that the delays and longtime taken for H4 EAD revoke rulemaking is expected because it can have major implications throughout the immigration system. They also say that DHS is trying to do their best and working on the H4 EAD rule removal by working with OMB, OIRA and not idle.
- As told by Save Jobs, the DACA case overlaps with this case decision by Supreme Court weighs heavily and that decision is two months away and the better thing to do is stay and wait for that decision.
- Save Jobs does not provide any current proofs of reduced wages, lost opportunities, other harms to its members that they are still suffering from the injury from 2015.
- Save Jobs asked for summary judgment first and now after 80 days since the case moved to District Court is asking for injunction, which tells there is no urgency and irreparable harm in the first place for injunction from Save Jobs side. If there was such need, they would have asked for injunction in the first place, instead of summary judgment.
- Based on few reports, it is estimated that H4 EAD holder contribute to about 12.9 Billion to US economy each year do not have any net negative effect on US citizens.
- Intervenors also submit proof of few individuals declaring how an injunction would hurt H4 EAD holders. It has detail personal circumstances of the users.
- In general, preliminary injunction is an extraordinary measure that can be given only when there is a clear injury and likelihood of success is clear based on merits of case and in H4 EAD lawsuit, neither of these are true. See below screenshot for the conclusion and order.
DHS Reply to Cross Motion – No compelling reasons for Injunction
The response by DHS to the Cross motion by Save Jobs USA is the one that is causing headlines in media with misleading information. Below is the actual response summary that is filed by DHS.
- DHS says that to get preliminary injunction, in general, the party asking for injunction should show that they are likely to succeed in the case base on the merits of the case and also should show that they are going to suffer irreparable damage in absence of the injunction.
- In current H4 EAD case, Save Jobs USA has not established anything that shows that its members had irreparable harm/injury from H4 EAD rule. Also, they only say that injunction will not immediately eradicate Save Jobs USA’s members injury and they speculate that it will only taper off over time…. All the Save Jobs claims are theoretical and does mean they are certain with any proofs. See below screenshot that tells the court to deny the injunction request.
- Save Jobs five-year old affidavits do not meet the demanding standard for injunction, and it does not reflect the present job market and threat of H4 EAD to them in current situation. They fail to submit proof of the demanding standard for getting a preliminary injunction.
- Save Jobs only claims H4 EAD causes them increased competition for employment, but does not really provide proofs or reasons that are going to have unrecoverable losses or irreparable harm for their members, which is required to meet the standards for preliminary injunction.
- Also, in the past District court has stated that DHS interpretation of authority under the INA is not unreasonable and H-4 EAD was issued with proper rulemaking authority. Save Jobs does not really address this point for injunction measures.
Those are the key argument points submitted by DHS and the intervenors on May 4th. The confusion in media is from the DHS response. Let’s look at the misleading info published.
Mainstream News Media misleadingHeadlines on DHS Stance
If you read the above argument points that were submitted as response by DHS for injunction request, all that DHS is saying is that H4 EAD is not causing irreparable damage to Save Jobs members that needs immediate injunction order and all of the details provided by Save Jobs do not meet the below standards that are typically required for getting a preliminary injunction.
“the party should show that they are likely to succeed in the case base on the merits of the case and also show that they are going to suffer irreparable damage in absence of the injunction.”
The context of the point raised by DHS is very important. It is only for injunction order. DHS stance on H4 EAD rule removal has not changed, they still plan to revoke the H4 EAD rule by publishing it in Spring 2020 agenda. Below is the screenshot of one of the key statements that is poorly interpreted
The above context is poorly interpreted by media outlets and bloggers, making the whole point wrong stating that DHS has changed its stance on H4 EAD. These are purely clickbait articles intended to create panic among many and spread false information. Do NOT be misled by such articles, always review the source and use your discretion. At the end of article, there is copy of the actual official document submitted to court by DHS for your review.
No, they still plan to revoke H4 EAD as per their plan and they say it will be in Spring 2020 Regulatory Agenda
Yes, you can. Nothing has changed as of now. We need to wait and see, if court gives injunction order or not.
Well, this is very hard to say as Court will look at the key requirements for Injunction. We need to wait and see how court will handle it. There are quite a few arguments submitted by DHS, Intervenors that state Save Jobs has not given enough proofs showing the damage. Stay tuned for court update.
No, this is not true. They all are misinterpreting and not looking at the context. DHS said that in context of injunction. DHS still plans to revoke H4 EAD, their stance has not changed. Read above article for clarification.
It is currently with OMB, OIRA and review is going on. DHS says they are planning for NPRM and will publish in Spring Regulatory agenda. As of today, May 7th, it is still pending and not published.
What do you think of the H4 EAD injunction Request ? What could court do ? Share your thoughts in comments.