DHS Responds to Court Order on Status of Proposed Regulation to Eliminate the H-4 EAD

Last week, the United States Court of Appeals for District of Columbia Circuit ordered DHS to file a report addressing the status of the H-4 EAD proposed regulation. DHS filed its report today, which simply states: “The proposed rule is currently pending with OMB and OIRA. Since DHS submitted the proposed rule to OMB/OIRA in February, OIRA has […]


Last week, the United States Court of Appeals for District of Columbia Circuit ordered DHS to file a report addressing the status of the H-4 EAD proposed regulation. DHS filed its report today, which simply states:

“The proposed rule is currently pending with OMB and OIRA. Since DHS submitted the proposed rule to OMB/OIRA in February, OIRA has hosted eight meetings with interested parties to discuss issues in the proposed rule. Representatives from both the U.S. Citizenship and Immigration Services (USCIS) and DHS attended these meetings along with representatives from OIRA. Some of the parties who requested the meetings provided specific information and data about the potential impacts of the rule for USCIS to consider before issuing the rule. USCIS continues to work on this rule and it currently remains under Executive Order 12866 review at OIRA.”

Background:

  • SAVE JOBS USA v. U.S. DEPARTMENT OF HOMELAND SECURITY was a case filed back on April 23, 2015 in the United States District Court for the District of Columbia . Save Jobs USA is an organization comprised of IT workers who claim they lost their jobs to H-1B workers. The group challenged the Department of Homeland Security’s (“DHS”) H-4 EAD regulation that went into effect on May 26, 2015. The court granted summary judgement in favor of the government, finding that only a subset of H-4 visa holders would be eligible to obtain EADs and Save Jobs USA did not establish that its members would be harmed by having to compete against a subset of H-4 visa holders for jobs. In addition, the court went on to state that Congress delegated authority to DHS to set rules regarding employment authorization and DHS was reasonable in using that authority to grant EADs to some H-4 visa holders. The case was closed at the district court level on September 28, 2016. An appeal was filed and the case has been held in abeyance at the appeals court since the Trump administration took control based on DHS’ indication that a new regulation rescinding the H-4 EAD rule was being planned. The appeal has now been going on for over two years.

  • In September 2018, the U.S. workers who brought the lawsuit had enough of waiting and filed a motion with the court requesting to remove the abeyance and move forward with the case.  Save Jobs USA pointed out that the even thought the case has been delayed, still no proposed rule has been submitted to the OMB.  Save Jobs argued that “[j]ustice delayed is justice denied” and the longer the H-4 Rule remains in effect, the longer Save Jobs USA members and other American workers will “suffer injury from the presence of foreign competitors in their job market.” They also pointed to the vagueness of DHS’ previously submitted reports regarding the status of the proposed regulation and exactly what DHS plans to propose. Because DHS has yet to make good on its promise to propose a new regulation, Save Jobs wanted the court to decide the case, specifically the question of whether DHS has the authority to permit employment without Congress.

  • DHS filed its response in opposition back in September 2018. DHS stated that its senior leadership reviewed the proposed rule and returned it to USCIS this month for revisions. When the necessary revisions are incorporated, USCIS will return the proposed rule to DHS for final clearance and submission to OMB. DHS claimed in its filing that it was making “solid and swift progress” in proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization. At that time, DHS indicated that a proposed rule would be submitted to OMB within three months.

  • In December 2018, there was still no proposed rule submitted to OMB so the court decided to grant Save Jobs’ request to remove the abeyance and move forward with the case.

  • New briefs were filed by Save Jobs, DHS, and Immigration Voice

  • Oral argument is currently scheduled for Friday, September 27, 2019.

Based on DHS’ filing with the court today, plans are still underway to issue a new regulation to eliminate the H-4 EAD. When the regulation is finally proposed, remember it is just a proposal. It does not change existing law. You can continue to file new H-4 EADs and renewals.

~ImmigrationGirl



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