H4 EAD Lawsuit Jan 2019 New Replacemet Brief by Save Jobs USA

H4 EAD News: New Court Brief by Save Jobs USA Summary – Jan 2019

In Immigration| Visas by KumarUpdated : 17 Comments

As you all know H4 EAD Lawsuit, and Rule removal History, it has been going on for a while. In Dec 2018, court revived this case and asked all parties in the litigation to submit their briefs with defined dates. Save Jobs USA is the first one to submit replacement opening brief supporting their case. It is a pretty lengthy 77 page document with 116 page appendix document. We will summarize the case documents and argument from ‘SAVE Jobs USA’ in this article.

Summary of the Replacement Opening Brief Submitted by Save Jobs USA :

If you are not aware of court processes, an opening brief is a document with all the facts about the case and argument put forward by the person/ organization regarding their lawsuit/case against someone or an organization. In H4 EAD Lawsuit context, the court is requesting a replacement brief as the original case was filed back in 2015. Also, the word ‘Injury’ in legal context refers to loss or harm done to a person or a group either financially, to their rights, etc.  Now, coming to the case, below are various facts and argument details by Organization ‘Save Jobs USA’.

Key Facts, Issues raised in the H4 EAD Court Briefing by Save Jobs USA

  • H4 EAD rule adds about 179,600 aliens to work in US and add another 55,000 every year thereafter.
  • Immigration and Nationality Act (INA) from 1990 made changes to H category and created H1B visa, but did not touch H4 visa holders category
  • In 2002, Congress passed law authorizing E and L visa category spouses (L2 holders, E2 Spouses) to work, but did not extend work authorization for H1B spouses, which is for H4 visa holders.
  • DHS exceeded their authority to permit H4 holders to work on EAD through regulation. There was never been any statutory authorization for H4 status holders to work in US.
  • H4 EAD rule has no restrictions and allows H4 holders to work in any field, anywhere and has no protection for American Workers
  • This rule also encourages H1B holders to remain in US as their spouses can work, there by affecting the Save Jobs USA members.

Summary of the Argument by Save Jobs USA in H4 EAD lawsuit:

Below are various argument sections and points raised by Save Jobs USA supporting their lawsuit against DHS.

  1. H4 EAD rule Causes multiple injuries to Save Jobs USA Members: H4 EAD rule allows about 179,600 foreigners/ aliens to compete with ‘Save Jobs USA’ members in their job market and also affects / injures everyone in US national job market. Below are some of the major injuries/ harm done to the ‘Save Jobs USA’ members.
    • Competitive injury from H1B holders as they would plan to stay as their spouses work now, instead of leaving USA.
    • More foreign workers on H4 visa are more competition in job market. It affects everyone in US job market and not just ‘Save Jobs USA’ members.
    • Many of the H4 EAD holders are in same field as ‘Save Jobs USA’ members, technology field. The district court excluded evidence as they were after the date the complaint was filed.
    • H4 EAD rule injures members of ‘Save Jobs USA’ as it deprives them of the statutory protections, which should be applied before allowing H4 holders to compete with them.  This rule not consider the protections of domestic labor in US. The district court did not mention about the labor protections deprived for Save Jobs USA members under the H4 EAD rule.
  2. District Court Erred by holding the date of complaint for supporting evidence:  The district court wrongly excluded evidence regarding the loss or injury to Save Jobs USA members stating that it was dated after the original case/ complaint was filed with court.  Though Save Jobs Provided many job advertisements, none of them were considered. Evidence was given from desiopt job postings, Indeed Job postings, h4-visa-a-curse blog showing number of computer workers on H4, etc.
  3. DHS authority to create H4 EAD Rule : ‘Save Jobs USA’ questions, if H4 EAD rule creation was even permitted as per law and if DHS had the authority to do so.
  4. DHS exceeded their authority for H4 Rule without Congress : Congress has not provided anything to DHS to admit alien labor outside of statutory scheme of the Immigration and Nationality Act (INA). DHS has exceeded their authority by passing H4 EAD rule. There is no statutory provision that authorizes H4 holders to work in US, DHS took their own action and authorized exceeding their authority. This is in violation of the authority and INA rules to protect US labor provisions.
    • H4 Work authorization not given by Congress : ‘Save Jobs USA’ says that the exclusion of H4 from labor market was a conscious decision by Congress, that’s why they did not authorize employment for H4 holders. Several bills were introduced over years for H4 work authorization, but Congress rejected all of them.
    • DHS claim of Unlimited Authority to give work authorization : They say that  DHS claim to provide work authorization is a recent invention and has produced many crazy administration actions and work authorization to many types of aliens like H4, F1 OPT Rules, DACA & DAPA programs EAD, battered spouses of non-immigrants, etc. and hurting labor market in US
    • Congress Never gave DHS authority to Admit Aliens to US Labor Market through regulation : ‘Save Jobs USA’ argues that Congress has control over immigration and authority to provide work authorization to aliens such as H4, and DHS was never given such authority. DHS assumptions based on certain sections of Immigration Reform and Control Act (IRCA) that says ‘ or by the Attorney General” , has its limited scope in its own section and does not apply to grant work authorization for any aliens without Congress involvement. DHS theory
  5. The System Congress Established for admitting Foreign Labor: They argue that the current system established by congress under Section 103 of INA for general authority of Attorney general is to administer the immigration system, but does not give authority to provide work authorization for other aliens and admit them to American Labor market. Also, both the House and Senate reports on INA state that it “provides strong safeguards for American Labor” and they do not mention granting of authority to permit foreign labor to work through regulation, that is exempt from these requirements.
  6. Alien Employment Regulation vs Statute : They argue that, if courts follow the district court in upholding the authority of work authorization by regulation instead of statute, then US would be no longer have statutory scheme to admit foreign labor. If courts adopt DHS’s claim for authority to give work authorization to aliens into US job market, then every statutory protection to US workers is at the risk of nullification through regulation.
  7. Immigration Voice does not have standing to Intervene : H4 employment is not mandated by Congress and is not legally protected interest, so Immigration Voice group does not have standing to intervene in this lawsuit.

You can check the below short video to understand argument and get summary

Conclusion of the Replacement Brief by Save Jobs USA for H4 EAD Lawsuit:

Overall, Save Jobs USA says that the current court should review the argument presented and hold previous district court decision as wrong/ error and also hold that H4 EAD rule by DHS exceeded their authority. Also, Immigration voice does not have standing to intervene for further proceedings.

Update : On Jan 18th, DHS Filed a motion to put the case in abeyance/hold and the deadlines on the case to respond to the brief as there is no funding due to the Govt Shutdown, but court denied their motion. So, the deadline for response from DHS has not changed.

You can check out actual 77 page Replacement Brief and and 116 page Appendix Official Court Documents at H4 EAD Lawsuit Court Documents
What are your thoughts on the replacement brief submitted by Save Jobs USA ?

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Comments ( 17 )

  1. H1B_Consular

    Hi,

    I have approved H1B under consular processing. But I didn’t use it and my employer revoked it.
    Can I activate this H1b which was revoked ?

    Currently I am working on H4 EAD and would like to know whether I can reinstate my old H1B .

  2. Ibrahim

    Hi Kumar,
    Yes, H1B + H4 + H4 EAD can be filed together in premium processing with USCIS, however your employer should be willing to do so, some employers do not consider filing EAD for spouse , they just file H1B + H4 in premium. check your employer’s policy.

    If employer does only H1B _+ H4 , then you should wait until thats approved in premium and then file EAD seperately on your own with USCIS with I-140 and approved extensions of H1 and H4.

    we had gone through every nook and corner regarding the H1B . H4 and EAD filing and extensions last year, hope it helps. All the best !!

  3. kiran

    Hi Kumar,

    I am applying for my I-140 in premium processing sometime around next month. Once i am done, i have my H1B extension around June-July this year. Would i be able to apply for my Wife’s H4 ead along with H1B Premium Processing so that i could EAD soon instead of the normal process which takes around 4-5 months?

  4. Adi

    H4 EAD harms the opportunities of H1 and F1.. There are many small jobs that H4 EAD’s replaces..
    I wish the H4 EAD should be removed quickly..

    H1 and H4 EAD and F1 should all be brought under one umbrella.. it’s a surprise H1 require speciality occupation and H4 can do any job or business

  5. vishal

    My Only take on this one is DACA rule which happened almost at the same time as H4 EAD rule went upto Supreme Court and is now finally got a stay on it. So if DACA could not get pass supreme court how will H4 EAD and most likely will end up with a stay. When government matters are involve court will never give its decision its always stay and work through congress and all.
    If at all court gives a ruling in favor of savejobusa then everything can be questioned like Green card , Citizenship. Ex: people can challenge the GC and even citizenship of any person.

    I hope lawyers fighting this case for H4EAd are well qualified and learned in this matter.

  6. Anirban Bhattacharya

    Not sure what is meant that DHS has overstepped on its authority to grant work visas to H4. What I know that they did as President Obama signed an Executive order regarding that and DHS followed that. In the same way, since Trump signed the Executive order on ‘Buy American, Hire American’, current DHS administration is rejecting more petitions. So DHS acts at the discretion of the President.

  7. Pree

    Agreed with Ash. If H4 EAD holders are harming the American Labour Market to such an extent, they may turn this into an opportunity to help the labour market by letting H4 visa holders to start a business here. This will not harm the labour market but inturn will create more jobs. On humanitarian grounds they need to understand it is very humiliating for a qualified person to either sit at home or live separately from their spouse.

    1. ABC

      A potential solution is to charge a high fee for H4 EAD application and make it available only for highly skilled jobs. H4 EAD does add more people to the workforce and competes directly with local labor.

  8. Ash

    the fact that 55000 H4 EAD holders are added every year is factually wrong. This needs to be pointed out. Save Jobs USA erroneously assumes that every H4 Visa holder qualifies for H4EAD. They need to know that only those whose spouse have an approved I-140petition qualify for the H4 EAD, and qualification for I-140is not automatic. Hence holding the view that 55k H4 EAD are added every year is a white lie. I hope someone puts this in front of the judges.

  9. Leaveusalone

    you people just create nuisance,this is happening from 2015.
    you just want to increase your views and create such hoax.

    already so many page created and now you came in picture and created one more with same topic.

    1. administrator
      Kumar

      It is not hoax, check the official documents that were posted yesterday, check link in the article. Maybe nuisance to you, but very important for many anxious H4 EAD holders !

    2. H4EAD

      It is not hoax, future of H4 EAD is very much dependent on this case. Kumar & redbus2us are providing valuable updates for all of us who are interested in the case. Please don’t discourage them.

      1. anonymous

        I Totally agree that this is not a NUISANCE.Think of many qualified people who are just stuck in the GC queue for I don’t know till when….they also have to be here for their family but they can’t work as they do not have that option! Just by granting EAD, ppl do not get the qualification to work………..Think logically, there are so many citizen dependants too who never think of working.That is because they never wanted to…..its simply iilogical to think that h4EAD makes underving candidates to compete with the other “so called” qualifies “save Americ Jobs’ people.

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