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

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 ?