H4 EAD News April - Appellant Reply Brief Summary

H4 EAD News : Appellant’s Reply Brief Summary by Save Jobs– Apr 29

In Immigration| Visas by KumarUpdated : 13 Comments

As you all know from H4 EAD Rule Lawsuit History, Timeline, ‘Save Jobs USA’ was due to file their reply brief today and they did file their appellant’s reply brief in response to the DHS Appellee Brief , Intervenor Brief by Immigration Voice, and Intervenor brief by Other Trade Agencies . It is about 37 page document and we have summarized the argument below.

As a note for below reading, whenever we say Appellant, it means “Save Jobs USA”, when we say Intervenor, it means “Immigration Voice & Trade Agencies that filed Intervenor Brief

Summary of the Argument by Save Jobs USA in Appellant’s Reply Brief

They try to highlight the previous standing saying that Save Jobs USA Members are injured ( harm from economic, job, etc.) in four areas by the H4 EAD Rule :

  • it increases competition for their members from H1B workers
  • it increases competition for their members from H4 Workers
  • It gives benefits their H1B competitors
  • It deprives statutory rights that protects them from foreign labor.

Key Argument Points by Save Jobs USA in their Appellant’s Reply Brief in H4 EAD Lawsuit.  

Below are some of the key areas and points that Save Jobs has focused on in their reply brief, where they counter DHS’s and Intervenor’s claims.

Intervenors adopt Unconstitutional Dual Authority Model:  Intervenors argument of DHS had authority to create H4 EAD rule assumes that there is a ‘statutory framework’ for unprecedented (never done or known before )  “dual authority” shared between Congress and DHS over issuing work authorizations for foreigners/ aliens.  Congress never gave full power, it only gave enough power to respond to immediate policy needs, where they have not acted, but they retained their power to define classes of foreigners/aliens that can work. The whole concept of separation of powers is at the heart of US government system and it cannot be done like in H4 EAD case, where power to define work authorization is delegated. Intervenors interpretation of INA (Immigration and Nationality Act of 1952) that executive branch has greater power than congress to define employment eligibility in immigration system is not correct and court should not adopt it.

Congress has NOT attempted to give ‘Dual Authority’ to DHS : It would be unconstitutional for Congress to give dual authority for itself and DHS and they Congress has not done so. DHS’s broad authority over immigration does not mean they have dual authority with congress to permit employment.  Also, intervenors do not specify where Congress has granted discretionary authority to grant work permits.

You can watch the Summary Video that covers all these points in detail.

Congress not spoken about H4 work authorization : Intervenors argument that there is no explicit action/ text by Congress that limits H4 employment does not mean that DHS gets power to authorize such employment. They argue that intervenors ignore the fact that “ an agency authority flows from which Congress clearly delegates to it, not just what Congress is silent about”

Sending the Case Back to District Court :  Save Jobs USA argues that this case has been dragged for over four years and the question of “if DHS had authority on creation of H4 Rule” was fully briefed before the district court and sending it back to the same court to discuss the same argument is pointless and would be waste of time and judicial resources.  If sent back, it will come back again to the appeals court and the case again will start over from beginning.

DHS argument on case will be moot (not logical/ pointless) : Save Jobs USA argues that DHS is dangling with the H4 EAD removal rule and they have made anything to tell that rulemaking with completely remove H4 labor from market. Also, DHS may do something similar in future and give work authorization as they have done so many similar rules in recent years.  “DHS has broken promises to delay the case for two years and enough is enough”

DHS cannot show Save Jobs USA does not have standing : Save Jobs USA argues that the standing comes directly from the H4 EAD rules statement of purpose that clearly tells that it will help and provide incentives to H1B holders, who are competitors for Save Jobs USA members in market.  DHS by saying Save Jobs lacks standing, they are denying the H4 EAD rule that they created.

DHS renounce their own administrative record : Save Jobs USA says that DHS renounces ( reject/ abandon) the very purpose H4 EAD rule was created to help H1B holders stay, who are Save Jobs USA’s members competitors. DHS’s argument points are contradictory to what they have put in the H4 EAD rule creation.  Save Jobs USA argues that, when DHS made H4 EAD rule, it stated that “H4 EAD rule provides incentives to attract and retain H1B workers” and now DHS is contradicting/ abandoning their position regarding the same that it will not hurt Save Jobs USA’s members from H1B workers in their briefs.

DHS argument on Court to ignore presence of H4 Workers in Computer Job Market: They argue that the intervenor and Amici brought H4 workforce studies where it says “66% of H4 work in Science/ Technology/ Engineering/ Mathematics filed mostly in computer related, engineering or math or statistical jobs”. Also, the second study states “common H4 holder occupation is software developer” . Both of these studies clearly tell that H4 holders impact Save Jobs USA members in the computer job market. DHS ignores the large number of H4 holders are already in the computer job market  

Cut off rule for Considering Evidence : DHS asking this court to adopt the cutoff date for the evidence to be before the date of complaint. If the court adopts this then plaintiffs can no longer even submit affidavits in support of the standing drafted after the date of the complaint. Also they argue “ future facts can show prior facts, for example, a layer of hardened lava can show that a volcano previously erupted.” …Logical analogy from Save Jobs…

DHS Rejects its own findings of H4 EAD Rule : DHS argument in this case brief is rejecting its own claims on the very purpose of H4 EAD rule that provides incentives to encourage H1B holders to remain in US, who in turn compete with Save Jobs’ Members. The administrative record shows that H4 EAD rule is giving these benefits and this evidence was presented in the district court.  

DHS  Error on workers in question : DHS makes an error of law by saying that the workers in question (H4 and H1B) are part of the domestic pool and not alien competitors. In reality, both H1B and H4 are guest workers and an application for permanent residents does not make an alien a domestic workers as DHS claims.

Deprivation of any statutory right can confer standing : Congress has granted Save Jobs USA members the statutory right to have aliens/ foreigners conform to certain requirements before competing in the job market with them.  The H4 visa lacks worker protections as it does not authorize work. In general, to compete in Save Jobs USA’s members job market, aliens/ foreign workers usually get H1B visa and have to comply with the labor protections. Because H4 EAD was given through regulation, there is no labor protections and Save Jobs members are deprived of their statutory labor protections.

Conclusion : Save Jobs says in conclusion that it has standing to bring this issue to court and DHS exceeded their authority delegated by Congress.

Overall, Save Jobs USA has tried to put in their strong counter argument for the points raised by DHS and the intervenors. Some of them are really logical and compelling.  To add, there are a lot of citations in the court brief document that compares cases and get inputs from them as proof. The authenticity of these claims and relevance of them to the case put up by Save Jobs can only be verified by Court and we need to wait. You check the Official court briefing document at H4 EAD Lawsuit Court Case Documents.

What do you think of the argument by Save Jobs ?  Your thoughts.

   

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Comments ( 13 )

  1. NG

    Andy Smithe has some very valid points. H4 dependents are getting an easy ride when compared to F1 students which is not fair. H4s are in US only because of their spouses and not on their own merit. F1 students pay through their nose for education in the US. They also get their education in the highly valued US universities which make them better candidates for jobs in US when compared to H4 dependents. F1 students are also law abiding tax paying citizens in the making. F1 students have also taken the legal route. Nothing different. Being somebody’s spouse should not be a criteria for getting work authorization easily.
    Universities are getting the funds through students. Many students have returned to their respective countries when they could not get their H1 visa. On the other hand, H4 dependents get their work authorization only because their spouses are on the path to citizenship, Not fair at all!

    1. AD

      Funny you have such a biased opinion. Also you are comparing apples to oranges!

      Even if spouses of H1s (underline – who are in queue to get there GCs) get an EAD – that doesnt make them IT crowd – nor does it make them any less qualified.

      The H4s with EADs that working in IT are qualified with good amount of experience.
      If you have any bad examples in mind of any sort – its not fair to generalize the whole category on those basis!

      According to you – its fair for the skilled spouses of the H1s in queue to be perm residents – to sit at home , live a life that they dont deserve.

      Tomorrow , (if you are an F1/H1 holder) , your spouse could be in the same boat – your household would earn half of what it could earn – and that will be cool to you – I guess!

      Also, when they are giving EADs to this pool they are not taking away anything from F1s – Are they my friend?

      Now if you are worried that you are not able to score a job because of this H4 EAD pool – then i think you need to hone you skills more.. No Excuses!

  2. AG

    Two points
    # 1 H4 EAD is NOT given to all spouses of H1B visa holders. Only those H1b with approved i 140 petitions . These are “citizens in the making” who wont get a green card due to back log issues ( 15-20 yrs for an indian /chinese vs 6 months for rest of the world ) and broken immigration system ,which should honor first come first serve ,not some random quotas per country. H4EAD workers are spouses of a “specialty occupation” worker ( h1b holder ) who have been CERTIFIED by labor department to be serving roles where there are no citizens to fill position’s. Getting labor certifications is expensive , time consuming and an employer would be willing to get a labor cert only when they see they cant get local talent . H4 ead workers are not entitled to welfare benefits and came to the US with legal routes. They are not seeking asylum or asking for favors,they are upright law abiding tax paying citizens in the making , who are trying to better their quality of life and for their own self respect and asking for a basic human right to be able to work.
    #2 H4 EAD folks are not just bored dependent housewives with IT background , we are higly specialized doctors ( like myself ,trained in US for over 7 years ,now working in an underserved area,supporting 4 full time positions for american citizens in my office ) teachers social workers entrepreneurs .

    Revoking h4 ead would be american immigration system punishing us for doing everything by the rule book and for not abusing the loopholes in the system.

  3. Andy Smithe

    I do not agree with H4 work permits. Here are my reasons:

    1. Students who come on F1 visas need to be given priority as they have taken the difficult and self-reliant path. Foreign students are better qualified than dependent H4s
    2. H4 visa applicants are mostly the ‘bored housewives’. Instead of coming on their own, they take the easy way out and come on a dependent visa. Then they get jobs through their spouses. If they are really smart, they will come on their own and not depend on anyone
    3. They are also willing to work for lower wages and compete with better qualified students. For the dependents, work is not a necessity. Whereas students would have worked hard, taken loans and are more smarter than H4 dependents.

    1. AD

      1. Just because someone paid a lot of money for education- that doesn’t entitle them to anything extra/special.
      A student on F1 could be brightest or dullest. A person on H4 EAD could be brigtest or dullest as well.
      2. Its pathetic how you described all the H4 – EADs as “Bored Housewives – That are not smart enough”
      So answer this question my friend-
      “Are industries really preferring the so called “DUMB Bored Housewives” to “Smart Bright Hardworking F1 lot”
      3. You are nobody to decide – Who needs the work more!

      Do not compare F1s and H4s . They are not the same as you say.

  4. HP

    These are few points came to my mind

    1. H4 ead is given for perm waiting people. So there is no restrictions on kind of job they do.
    2. H4 ead helps h1bs not to leave country: I think almost they made choice to stay back in USA. So only they applied for green card. How ead is impacting??
    3. H4 ead contributor for USA economy by paying taxes and spending money in USA

  5. vk

    H4 EAD needs to be either removed completely, or regulated strongly. Without a LCA, H4 EAD people become equal to US Citizens in job market. This is a wrong equivalence and distorts the labour landscape in supply and demand.

    Realistically, out of the 90000 H4 EAD issued, only a miniscule minority are truly brilliant scientics, teachers, professionals, enterpreneurs. Maybe, less than 20. (Again, without LCA, we cannot get the real count). Be honest. These 20-odd people are not given their due dignity by US immigration system- and that is a problem.

    However, the vast majority of them run the counters in walmart and home depot. These jobs should ideally go to less privileged Americans. But H4 EAD – having an incentive to accept jobs at a lower pay scale (again, be honest) displace the needy Americans. Who can counter this point?

    Now, back to IT. Some of them have come in via proper interviews. But a lot of them came in via inaccurate resume and favouritism like friends, telgu community. Please be courageous and admit that you are a part of this problem. This creates corruption, nepotism. Not good at all.

    The economic hardship will not work because H1 households make way over the US median income.

    Some are playing the women empowerment card. This is also wrong because H1 is a gender-independent visa program. Please stop this.

    Instead, USCIS should stop harassing the H1 folks and issue them an EAD with their 140 approval. Not to the spouses, but to H1- who have gone through labour certification.

    1. administrator
      Kumar

      The points you raised are some the concerns raised by Save Jobs as well that they are losing standard labor protections…Every rule have pros and cons…during rule making – some win, some lose, it is all about balancing the system …It will be interesting to see how DHS will handle this…

      1. vk

        Hi Kumar,
        Thank you for your attention. While DHS may or may not revoke, there are some competing forces at play here. I totally get your point of view that in a new rule, some parties win while others lose.

        How do we balance the need of spouses to work versus the need of statutory protection of US citizens in job market?

        How do we balance the favouritism of hiring based on friendship or telegu community versus the need to hire the truly qualified ones without any personal consideration?

        How do we balance the need of families to supplement income even by undercutting wages versus the need of needy Americans in walmart cashiers?

        These are difficult questions, and there is no easy answers. But the supporters of EAD are the ones who stand to gain- for example, attornerys looking for money and the opposers are ones who is afraid of additional competition.

        1. administrator
          Kumar

          Very valid questions Vk…agree, really difficult questions…some situations are even emotional…hard to make everyone happy….thanks for chiming in…

    2. NS

      I agree with your points VK, But What about people like me. I am beneficiary of H4 EAD, I came here with hope of working in US, I have degree in Information technology and 7+ years of work experience in IT firms(with strong skill set).
      How removing H4 EAD will solve the problem? Why cant we compete in US market? just because people are afraid of little more competition? If people are really afraid of competition then they should not be even competing, don’t you agree?.

      And about “If you are genuine/really talented why don’t you try for H1b” – People are this dumb to ask such question. This will be my 3rd time my employer applying for H1b, but guys we have lottery system remember???? its not skills based.

      1. vk

        NS,
        I get your point and believe me, I sympathize with your plight to be always on tenterhooks and uncertainty. Again, as I noted before- you are a miniscule minority of deserving H4 EAD.

        The problem is wrong equivalence. Spouses of strictly enforced visa program H1 – becoming equal to US Citizens in job market wrongfully distorts the labour market. It is not 1 good individual.

        So, my case is: Apply LCA criteria to H4 EAD as well, so that they just cannot grab a cashier job for 10/12 per hour at walmart- thereby displacing a really needy American. This is something H4 EAD is really not entitled to. In your particular case, you will easily pass the LCA criteria and your problem will be solved.

        Second, if the argument is that H4 EAD is given to only spouses those who are in green card queue with 140 approved, then this argument is disastrous. Using the exact same argument, we should be saying that with this reason, grant EAD directly to the H1 guys themselves- they have proven their skills already. Using this reason of approved 140 to benefit the spouses is not good at all.

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