How is Trump Affecting the H4 Visa EAD Lawsuit?
On May 26, 2015, immigrants all over the US rejoiced when the USCIS passed the Employment Authorization for Certain H4 Dependent Spouses. Before this rule, the H4 visa program in effect had left thousands of visa holders without any work authorization.
So when the rule passed, people who had recently been ineligible to work in the United States swarmed into the job market to apply for jobs they qualified for. H4 visa dependent spouses were eligible for the EAD (Employment Authorization Document) if they had an approved I-140 (immigration petition for Green Card or Permanent Residency), or had an H1B visa spouse with visa status lasting longer than 6 years under the AC21 Act.
The rule was met with backlash as Americans complained that they were going to lose jobs to immigrants because of the new law. Consequently, a lawsuit was filed against the H4 EAD rule to stop it from going into motion.
Who Filed the H4 EAD Lawsuit?
An organization of IT workers called Save Jobs USA believed they lost their jobs to the influx of H-1B workers who had come into the job market. On April 23, 2015, before the rule was going to be enacted, the group took their fears into action and filed a lawsuit against the Department of Homeland Security (DHS) to keep the new law from going into effect.
At court, the organization claimed that the new rule harmed American workers seeking employment because it made the job market more competitive and difficult for Americans. They also claimed that the DHS did not even have the authority to grant EADs to H-4 visa holders in the first place.
The Federal district court dismissed the law in September 2016 because “Save Jobs USA” could not prove that the H4 EAD eligible persons would negatively harm Americans. It has been appealed, however, and the case continues.
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What is the Trump Administration Planning on doing?
With a protectionist president taking the reigns of national and foreign policy in the US, people are wondering how this administration is going to affect this H4 EAD lawsuit. So far, at the beginning of this year, the president asked for 60 days or abeyance to temporarily deactivate the rule so that they can deliberate what they should do about it. 2 months later, in April, the administration asked for an extra 180 days before providing their opinion. We wait patiently as every 60 days we wait for an update, and hopefully a final judgment at the end of the 6 months.
H4 EAD Lawsuit Latest News
SAVE JOBS USA, citing lengthy delays totaling more than a year, filed a motion asking the court to proceed to an oral argument and briefing as soon as possible on September 11.
DSH responded by requestion a further hold on the case, citing swift progress regarding the removal of the H4 EAD rule.
The Trump administration is expected to release a notice of proposed rulemaking regarding the end of the H4 EAD program within the next three months. During this period, DHS will take comments from the public to consider as it decided its final rule.
At this time, there is no official word on whether or not anyone will have their H4 EAD revoked.
USCIS provided an update to the court, saying that DHS’s stance had not changed and that the rule removal was under clearance review on August 20.
DHS releases its Spring 2018 agenda with an updated timeline for removing the H4 EAD rule on May 10.
On May 16, Rep. Pramila Jayapal and Rep. Mia Love and 128 other members of Congress signed a letter to Trump administration to reconsider removing the H4 EAD rule.
On May 22, the DHS filed an update reaffirming their stance on the removal of the rule.
The USCIS Director updated Congress on the progress of removing the H4 EAD rule, outlining changes to both the H1B and H4 visa programs.
The court ordered the case held in abeyance on February 21 and denied SAVE JOBS USA’s request for an oral argument. DHS has until May 22 to file an update with the court.
On February 28, DHS responded, saying that H4 EAD regulation would be revised and submitted to the Office of Management and Budget by June 2018.
DHS published it’s Fall 2017 Regulatory Agenda, which contained an agenda item titled “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” The agenda item suggested that the H4 EAD rule would conflict with Executive Order 13788 (Buy American Hire America).
On December 22, DHS filed a motion further hold the suit in abeyance as it works through the regulatory implementation of the “Removal of H4 EAD.” The motion further argues that having an oral argument would no longer be necessary, as the process to remove the rule was already underway.
That same day, SAVE JOBS USA filed a motion arguing that DHS acted without authority by implementing the H4 EAD rule. It further argued that implementing the rule took 2 years and that the removal was projected to take a similar amount of time, which meant that it would be 2 more years of Americans losing job opportunities.
DHS requested a further extension of the deadline, but the court denied that request, asking for further motions to be filed no later than January 2, 2018.
At this time, the DHS has not given word on whether or not anyone will have their H4 EAD revoked.
SAVE JOBS USA responded by filing a motion stating the DHS had taken no action and gave no opinion on the H4 EAD rule and requested that the suit be settled by oral argument.
The Trump administration file a motion on September 27 for the case to remain in abeyance, reasoning that the DHS needed the extension to fully consider the H4 EAD rule in light of Executive Order 13788 (Buy American Hire America).
The appeals court granted a stay on June 23, asking SAVE JOBS USA and the Department of Homeland Security to file further motions for how to proceed by September 27.
The Trump administration requested an additional 180 abeyance to consider its position before submitting its opinion on the H4 EAD lawsuit.
The Trump administration filed a motion for a 60-day period of program inactivity as it considered the H4 EAD program and responded to the case with its brief.
What Does This Mean for Current H4 EAD Visa Holders Now and What Will Happen to Them in the Future?
There is no way of knowing exactly how this story will fare, however, for now, H4 EAD visa holders do not have to worry about their status being revoked. They can continue their lives without being affected until a final judgment is given in court. New H4 EADs will be dealt with the same way they were dealt with before because the rule is still in effect.
The Trump administration may either drop the H4 EAD lawsuit or decide to continue fighting it. If the administration decides to challenge the rule, it might be possible that an intermediary, like the AILA, will come in to proceed with the case.
If you are an H4 EAD holder you do not have to keep yourself up at night thinking about the absolute worst outcome of this case. You should always be prepared for what is to come, but the best thing to do for now is to go on with your lives, stay informed on the subject, and be patient! Falling into the gossipy disarray surrounding the lawsuit will only make things worse!
Do you think the H4-EAD lawsuit will see victory with a Trump administration? Or do you think the timing of everything will help the H4 EAD rule stay in effect? Let us know your thoughts in the comments section below! We will keep updating articles as much as possible so you can stay on top of any changes in the immigration law and the effects they will have.