H4 EAD Rule Removal April 2019 Update - DHS Brief to Court

H4 EAD Lawsuit – Summary of DHS’s Appellee Brief filed – April 1-2019

In H4 Visa by KumarUpdated : 7 Comments

The litigation on H4 EAD has been going on for a very long time as you can see full details at article History of H4 EAD Lawsuit and Timeline.  DHS’s brief was due on April 1st, and they complied with the date by filing their brief late last night at 10:46 PM. It is a 49 page document submitted to the court supporting their argument. Let’s review the key points in the brief filed by DHS.

To give some background– The case is currently in “US Appeals Court for District of Columbia”. The case was previously lost by Save Jobs USA in “US District Court for District of Columbia”.

Summary of Argument Presented by DHS against Save Jobs in Brief :

DHS argues that the Appeals Court should confirm the judgment given by District Court regarding the H4 EAD Rule. They highlight that appeals court has three key issues to review as part of this brief.

  • District Court Final Judgement : Did the district court correctly give judgment that Save Jobs lacked evidence to challenge H4 EAD rule
  • Extra Evidence Post Dated : Did the district court abuse its power by not considering the extra evidence that was post-dated and submitted in the case.
  • Save Jobs Statutory Authority : If the Appeals court concludes that Save Jobs has standing to challenge H4 EAD rule, then they should send it back to the District Court for review on the key point of argument that DHS lacked authority.

Let’s review all three key aspects.

District Court final Judgement

DHS argues that Save Jobs lacked evidence to challenge the H4 EAD case based on the below details.

  • Concrete Evidence on Impact for Save Jobs Members : There is no concrete proof that shows impact to Save Jobs holders in terms of competition or jobs. The key point is Save Jobs members were in IT field and there is no evidence that H4 EAD holders will only do IT jobs. It is too generic, and Save Jobs cannot argue that this will create competition for their members in IT/ tech jobs. They should establish there was direct competition with H4 holders to have any argument. Also, the facts they presented on the number like 179,600 H4s will be added to job market is not true as some may apply for jobs, some may not and only some may apply for IT jobs in Southern California, where the Save Jobs members raising the lawsuit reside. Save Jobs pointing to the WashTech case regarding impact of their jobs due to F1 STEM OPT Rule is not relevant and pure guesswork. The appeals court should confirm the district court’s decision because Save Jobs Could NOT establish concrete proof or standing to challenge the H4 EAD Rule.
    • Save Jobs Could not establish proof that it increased competition from H1B Holders for its members and are personally harmed by this H4 EAD Rule. It is pure speculation.
    • Save Jobs could not prove that there are additional benefits to H1B holders because of the H4 EAD rule. They could not prove that H1B holders would stay back because of the H4 EAD rule. H1B holders are employed by their employers and are in their own green card process and that’s the reason they are still employed and not because of the rule.
    • Save Jobs could not prove regarding the loss or reduction of statutory labor protections as it was all speculative and there is no concrete proof of direct competition.
  • Save Jobs USA Basic argument Flaws: DHS argues that Save Jobs USA members lost their jobs due to H1B holders and they should rather be challenging H1B Program, but in this case they have filed a suit against H4 EAD Rule. Save Jobs argues based on the 4 theories regarding H4 EAD rule
    • The rule creates increased competition for Save Jobs USA members from H4 Holders
    • More competition from H1B Holders for Save Jobs USA members
    • The rule benefits Save Jobs USA members competitors, who are H1B holders
    • The rule takes away statutory protections from foreign labor.
    • DHS argues that all of these above four theories are bare speculations and were rejected by district court as there was no concrete evidence regarding the harm done or competition to Save Jobs USA members, including the benefits or statutory protections.

You can watch the short video on the summary of the DHS Appellee’s brief

Excluding Save Jobs Extra Evidence Post Dated :

DHS argues that district court did the right thing by not considering the post dated evidence, because in litigation additional evidence can be produced but the materials with post date of the complaint cannot be used to establish the case. Basically, you cannot file a complaint based on future evidence. DHS argues that the evidence in Appendix submitted by Save Jobs USA was all postdated and district court could not find that they would establish any harm to Save Jobs USA members directly as there was no concrete proof and also it was post dated.

Court Should NOT address Save Jobs Statutory Authority:

DHS argues as a general rule the federal appellate court does not consider an issue that is not passed from below court. In this context, the key point on the authority of DHS to issue H4 EAD rule as it was not fully considered in the district court. DHS argues that appeals court should only consider the facts established and decision given in the District court and should NOT go any farther than that. Basically, the argument that Save Jobs USA presented in appeals court brief earlier says that “DHS lacked authority to issue H4 EAD”, but it was never raised in the district court, so the current Appeals court cannot address that argument now as it is a different point to consider. If appeals court believes that Save Jobs has standing, then they need to send the case back to District Court, where Save Jobs USA can again raise their argument that DHS lacked authority and then proceed further.

  • Also, as the proposed rulemaking to remove H4 EAD is in progress and if the proposal is finalized, the H4 EAD rule will be removed and then it will be pointless to argue on this entire case as it will be moot, meaning that it will not be logical to argue or useless to argue as it will not be relevant at all as the rule would not exist after the process.

 Overall they argue that Save Jobs USA lacks standing to challenge the rule as their claims are based “overly speculative” aspects and facts established by them were filed after the case was filed and also no evidence for direct impact for the filing parties in Save Jobs USA. DHS seeks appeals court to uphold the decision from district court and if required, send it back to the district court to argue on the DHS lack of authority to issue H4 EAD.  DHS standing on the H4 EAD rule removal does not change in this brief and they clearly update court regarding the current rulemaking process that it is with OMB and it will be published soon as per the process. You can check out H4 EAD Rule Removal Predictions by Rule Making Process

You can check out our H4 EAD Lawsuit Court Documents History for reviewing the actual document.

What do you think ? Your thoughts on this litigation and brief  ?

   

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Comments ( 7 )

  1. vk

    I am very confused. Does the DHS want to keep or not keep the H4 Ead rule? On one side, they are fighting in the court to keep the rule, and on other side, they are trying to remove by rule making. Can someone please enlighten?

    Also, another doubt is- what is the general objection of the general population (not the Govt) against H4 Ead?

  2. Kritika

    Exactly, if they think H4 EAD is not a problem in itself and given only to green card holders. Plus EAD holders are not only concentrated in the IT jobs, then why take it back. DHS contradicting themselves by making points in favor of EAD and then charting out its plan to remove the same. Very unfair.

  3. Harsha

    I see this as a bad news 🙁
    This is more of a strategy to get the lawsuit dismissed rather than arguing anything about the merits of the H-4 EAD itself. If they get the lawsuit tossed or not, they still plan to eliminate the H-4 EAD.

    1. Anupam

      When DHS doesn’t think this rule is causing any problems, why are they still working on eliminating the rule that allows EADs?

      1. Harsha

        They’re trying to dismiss the appeals court case. They are still trying to remove it. They’re just trying to get the court case off their back.

        1. Priya

          Yes but this argument can be used against DHS when final revocation rule is published and there can be out of court settlement with IV.

    2. ChalMereBhai

      @harsh This is the way things work in court of law. When you murder a person say a criminal, your lawyer will give arguments to prove that you didn’t commit the murder. He won’ t be interested in proving how murdering a criminal has helped the society.

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