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.