H4 EAD Lawsuit - Intervenor Brief Only Immigration Voice Info

H4 EAD News – Second Intervenor Brief by Immigration Voice Only

In H1B Visa News by KumarUpdated : 2 Comments

In the H4 EAD Lawsuit, as part of the Intervenor’s briefs submitted to court yesterday, there were two briefs : First a brief was a 38 page document submitted in the evening by Chamber of Commerce of US, IT Industry council and National Association of Manufactures with Immigration Voice listed in it as Intervenor and these non-profit organization as Amici ( friends of court ). Later in the night a second brief of 54 pages was submitted by Immigration Voice along as the Intervenor Brief.  We will summarize the second brief now. If you have not yet read the first brief, first read Summary of Intervenor Brief by Immigration Voice, Others (Amici)

Background of the two Briefs as Intervenor:  The primary difference between this second brief by Immigration Voice only vs. the first brief of it along with others is that, in this second one Immigration Voice directly picks argument points raised by Save Jobs USA and then clarifies to court on the same that it is not correct. Also, wherever correct, it also supports DHS argument presented in their brief.

If you need background of case, you can check the full History of the H4 EAD Lawsuit Case and Timeline

Issues Presented in the Intervenor Brief for Review

Immigration voice says that it will address three major issues, as listed below, related to the case.

  • Did district court correctly find Save Jobs Lack of standing, strike their post complaint evidence ?
  • Did the court do mistake in holding Intervenor had standing in their motion to intervene ?
  • Does DHS has the authority to issue work authorizations ?

You can also watch the video Summary on Second Brief with Immigration Voice Only below :

Summary of the Argument by Intervenor Immigration Voice in H4 EAD Case

  • As the DHS / Government argues district court correctly held that Save Jobs lacked standing and correctly excluded their evidence that is postdated.
  • Save Jobs says Immigration Voice does not have standing for intervenor, but this court has decided that Intervenors do have standing, so it is the law of the case. Secondly, due to the potential injury ( loss/impact) created for H4 Holders, if the rule is invalidated, intervenors have standing.
  • If the appeals court would like to change their standing on case, they need to send it back to District court.
  • If the court would like to consider Save Jobs on the “lack of authority for DHS”, the court needs to look at the history of the statue, which has not been broken for 50 years and section 1103 of INA gives Secretary broad discretion to make such regulations, perform such other acts as necessary to carry out his authority to administer and enforce immigration laws. This long-standing interpretation by executive branch of both Republican and Democratic Admirations has been repeatedly blessed by congress. Congress in order to facilitate DHS’s ability to manage complex immigration system, has granted discretion to confer work authorization with few restrictions.

Key Argument Points by Intervenor Immigration Voice in H4 EAD Case

Save Jobs Lacks Standing :

The district court correctly granted summary judgement because

  • As DHS / Government presented in their brief, Save Jobs could not establish any proof that there is increase competition from H4 Holders to their members.
  • Save Jobs members only stated that they were applying to unspecified jobs in various technical fields and they did not provide any evidence that they were competing with every non-citizen worker benefited by H4 EAD rule or with H1B workers staying for longer due to H4 EAD rule.
  • Additional four points from Immigration Voice :
    • First, the WashTech allegation were different and not applicable here in H4 EAD case as it was STEM focused.
    • Second, no data tells that large number of H1B holder would leave job market, if no H4 EAD. No report from DHS to validate it, it is purely speculation.
    • Third, Save Jobs claim using Wayback Machine to show stricken evidence was not presented to district court, this cannot be used in appeals court.
    • Fourth, if the current court disagrees with the standing given by district court, it should send the case back to district court to fully address the merits of the Save Jobs claims in the first instance.

Intervenors Have Standing :

Save Jobs argues that there Immigration Voice does not have standing for intervenor, but this court has granted motion to Intervene.  Due to the potential injury ( loss/impact) created for H4 Holders, if the rule is invalidated, intervenors have standing.

Current court should Not consider Statutory Question :

Immigration Voice says, as mentioned by DHS/ Government in their brief, if the current court decides to reverse the standing on case, it has to be sent back to the district court to consider the statutory question in first instance.

In any Event, Secretary (DHS) has authority to issue H4 EAD Case :

Immigration Voice has really put together a very detail history of the INA and how it has changed in the past for over 50 years and what modifications were done in the first few years and how it is came to final state as it exists today. They argue on the below key points that DHS has authority

  • The Text of INA provides the Secretary (DHS) with authority to issue work authorizations. Authorizing H4 holders EAD is consistent with the statutory framework.
  • The history of the INA confirms that Secretary (DHS) has authority to issue work authorizations. For the past 50 years, across multiple Democratic and Republican administrations the Attorney General, later the Secretary of DHS have interpreted this authority under section 1103 to issue work authorizations. They talk about the history of INS from 1979 all the way till recently regarding the authority and support it with examples.
  • Save Jobs Statutory argument lacked merit as they say Section 1324a(h) does not authorize DHS to do anything,  but DHS clearly mentioned when they did H4 EAD rule-making that they  are not using 1324a(h) as source of authority, instead “it simply “recognizes the Secretary’s preexisting “authority to extend employment” to non-citizens in US.
  • Immigration Voice talks about similar strong points around the arguments of Save Jobs and gives an explanation of the same that they are not correct.

Conclusion in Intervenor Brief :

Immigration Voice says that Court should affirm the judgement of the district court and if there is different standing, they should send it back to district court for further proceedings.

Overall, Immigration Voice has put up strong argument supporting the DHS Appellee’s brief that was submitted on April 1st  and they actually added much more points on the history of the INA and how DHS has the authority to issue EADs for their functioning as an agency. It is positive news for H4 EAD holders, we need to wait and see how Save Jobs will counter the arguments in the next brief submission.

What do you think of the brief by Immigration Voice ?

You can check the Official H4 EAD Case Official Court Documents History, if you would like to read more.

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Comments ( 2 )

  1. ironman

    Kumar / Admin – Hope one of you can help answering my query.
    I was in the US on L1B till May 2016 and left as I maxed out.
    I-140 approved in September 2016,
    H1B visa approved in December 2016, validity till Jan 2018
    Traveled to the US in Feb 2017
    Got H1B extension approved in Jan 2018 (validity till June 2020) on the basis of approved I-140

    I see one of the rules for H4-EAD eligibility is to have passed beyond 6 years. Can u let me know if my wife is eligible for H4-EAD given the above set of events?

    1. CaptainAmerica

      As your i-140 is already approved, your wife is eligible for H4EAD already, it has nothing to do with 6 years etc.,

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