H4 EAD Lawsuit Intervenor Brief Summary

H4 EAD News – Intervenor Brief by Immigration Voice, Others – Info

In H1B Visa News by KumarUpdated : 2 Comments

The intervenor brief was submitted today evening in the H4 EAD Lawsuit Case with the court. This is after DHS submitted their Appellee’s brief on April 1st. If you are new to this and want to know more, you should check out the full history of H4 EAD Lawsuit and Rule Removal. Let’s look at the summary of the intervenor brief, it is about 38 pages document, we have summarized it for easy understanding of everyone.

Update : There was a second brief submitted by Immigration Voice alone later in the night, read  H4 EAD Case Intervenor Brief by Immigration Voice Only – Second One. 

In the brief submitted, which is Amici Curiae ( meaning the friend of the court, but not the direct parties of the cases), Amici are listed as “ Chamber of Commerce of United States of America, The Information Technology Industry Council and the National Association of Manufacturers” . All of these are nonprofit trade associations. The Intervenors are Immigration Voice team.

H4 EAD Intervenor Brief Summary filed by Immigration Voice and Others

  • Background of Non-Profit Trade Organizations : The document initially talks about the all the three organizations and says that they represent about 300,000 direct members and more than a million business of every size and every sector. The organization they represent employ about 12 million men and women, contributing to 2.25 trillion of US economy, etc. They say that they have significant interest in the H4 EAD rule as they wish to protect welfare of their member’s employees to ensure better economic environment for American business and have access to worlds leading talent.
  • High Level Summary of the Argument : They state that due to the country quotas of H1B holders for green cards, e.g. For India the wait is about 17 years, H1B holders had single income and it discouraged many skilled workers to come to US. To mitigate this, DHS in 2015 promulgated H4 EAD rule to benefit those waiting for Green Cards to allow spouse of H1B holders to work in US. Since this rule, many tens of thousands of individuals have made irreversible decisions in life relying on dual income like having child, buying home or getting higher education. If the lawsuit is successful then it will force all of these individuals out of their jobs and they would have no means to afford their loans, mortgages or families. The H4 EAD rule was properly promulgated based on the authority given to DHS by congress.
    • The district court said “Save Jobs USA lacks standing in the lawsuit”, if the current appeals court believes that this has to be different, then the proper course is to send it back to district court and allow that court to reach conclusion there, especially when we have H4 EAD rule revocation in progress by DHS.

You can watch the short video of the below article as well below.

Intervenor’s Argument Details by various Key Points

 Tens of Thousands of Individuals rely on H4 EAD and contribute Billions to US Economy :

  • H4 EAD Rule contributes Billions of dollars of Economic activity, Tax Revenue: The whole idea of DHS to put up this rule is to retain highly skilled workers. Based on research below are some of the key stats
    • As per DHS Stats, roughly 91,000 people are employed on H4 EAD
    • 60% of H4 spouses have Masters Degrees, 99% are college grads
    • H4 Spouses on EAD contribute to 5.5 Billion to US GDP annually.
    • 2 Billion in productivity would be lost, if H4 EAD is removed and we will lose talents to Canada.
    • Overall, there will be anywhere from $7.5 to $15 billion impact of GDP annually, if H4 EAD is revoked.
    • US Federal Govt foregoes $1.9 Billion in taxes annually from H4 Spouses, if revoked.
    • State and Local Govt would lose $530 million in annual taxes, if H4 Revoked.
  • Tens of Thousands made irrevocable life decisions based on H4 EAD rule: Below are some of the stats of the decisions made based on the H4 EAD rule availability.
    • 27,000 families decide to have a child and incur many unavoidable expenses.
    • 52,000 families bought home in US, they cannot pay if no EAD
    • 20,000 families invested in higher education
    • Total 87% of families now have dual incomes based on this H4 EAD rule.
    • 90% of the H4 holders are females, it will have disproportionate effect on women, if H4 EAD is removed.
  • The H4 EAD rule does not cost the American workers : They argue that all these gains do not come at the cost of American workers’. Below are some stats to support the same.
    • Two thirds of H4 spouses are employed in occupation with unemployment rates less than 2%, basically this 2% are usually in transition of available jobs..
    • Only 5,500 to 8,200 jobs currently held by H4 holders would likely be filled by American workers in absence of H4 EAD rule. About 2% of H4 Spouses create own business and employ about 5 additional workers each and this will cancel out that impact of jobs to Americans. Also, they will boost the overall economy.

The H4 EAD rule is lawful exercise of DHS Authority :

The district court said “Save Jobs USA lacks standing in the lawsuit”, if the current appeals court believes that this has to be different, then the proper course is to send it back to district court and allow that court to reach conclusion there, especially when we have H4 EAD rule revocation in progress by DHS.  In case, if appeals court agrees with Save Jobs USA claim, would like to confirm that DHS has the power to authorize the employment for non-citizens based on regulation. Below are the supporting points.

  • Power to Promulgate H4 Rule is in DHS Broad Rulemaking authority under INA: The Immigration and Nationality Act (INA) of 1952 provides Secretary of Homeland Security with broad discretionary authority to establish such regulations and the same section empowers DHS to authorize employment for non-citizens like H4 Holders. The Attorney General has the authority to grant employment authorization for aliens in US and it was not a controversial proposition in many cases from past, so should not be now in H4 EAD case. This has been interpreted the same way for 25 years and not should not change now.
  • Section 1324a recognizes and ratifies DHS authority : The only plausible reading of Section 1324a is that Attorney General may authorize a non-citizen to work and Save Jobs USA’s argument that it is a “mere definition and does not authorize DHS misunderstands the point”. DHS already had the power to grant these discretionary work authorizations. The claims made by Save Jobs are not relevant to the case. Also, similar cases in other court of appeals have recognized this broad discretion of executive branch to authorize employment for non-citizens. The claim of Save Jobs regarding Fifth circuit decision in Texas vs US regarding work authorization for undocumented immigrants is not relevant here as H4 spouses are lawfully present in US and will become permanent residents anyways in future.
  • Subsequent Development further confirm DHS authority : DHS adopted exact interpretation of section 1324a after it was enacted in 1986 and Congress has acquiesced ( accepted without any protest) the interpretation. This was also raised in Regan administration time and dismissed. Over the years, since 1987, many immigration agencies across multiple political parties have relied on this to allow employment of non-citizens not statutorily authorized to work. Congress also amended the section 1324a since it was introduced and never objected executive branch’s claim of authority. It is not true that Congress is not familiar with this interpretation and is unaware of actions by Executive brand on this high-profile subject of ability of aliens to work in US.
  • Congress did not preclude the employment of H4 Spouses : Save Jobs US argues that Congress precluded ( prevent from happening / make it impossible for ) DHS to authorize H4 spouses employment in particular, which is not correct. Congress directed employment authorization for different categories of spouses but never said about the intent regarding H4 spouses. Basically, Congress mandate in one section and silence in other does not suggest a prohibition, but simply a decision from them and has not context here on their intent of not to have it for H4 holders.

 Conclusion of the Intervenor’s Brief  in H4 EAD :

Overall, the H4 EAD rule is a lawful exercise of the authority that Congress granted the executive branch and it is a rule that tens of thousands of people have to come to rely on and it has a long lasting benefit to US economy. The court should decline Save Jobs request to hold the H4 EAD rule as unlawful. “The H4 EAD Rule is Lawful Exercise of DHS authority”.

Pretty solid support for the H4 EAD rule…What do you think of the brief ? 

You can check the official court documents at our H4 EAD Lawsuit Court Documents page

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Comments ( 2 )

  1. H4EAD

    I understand the intervenor brief will be useful to argue against Save Jobs USA in the Court. But, Will it have any impact on the proposed DHS rule to revoke H4 EAD ?

    1. administrator
      Kumar

      Well, that one we do not know as it is DHS discretion to pursue further. DHS would know the implications of the same, maybe a potential lawsuit, if the rule revoked, etc. We need to wait and see.

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