Surprising New Twist in the Legal Battle over the H-4 EAD

The legal battle over the rule that allows spouses of certain H-1B workers to obtain work authorization had an unexpected development earlier this month.  For the last five years, Save Jobs USA, a group of U.S. technology workers, has been challenging this rule as hurting U.S. workers.  Since the Trump administration took office, the Department of Homeland Security (“DHS”) has been stalling this case, insisting that it plans on rescinding the rule, which would make the litigation unnecessary.   

Yet earlier this month, on May 4, DHS actually filed a brief opposing Save Jobs USA’s motion to stop issuing employment authorization to dependent spouses in H-4 status (“H-4 EADs”) while the litigation continued (a “motion for preliminary injunction”).  In its brief, DHS argued that Save Jobs did not show that their members would suffer “irreparable harm” from the continued issuance of H-4 EADs during litigation.  In fact, DHS stated that the alleged harm to US workers was based on data that was five years old and not sufficiently serious.  As such, DHS concluded that putting a pause on the issuance of H-4 EADs was not warranted.   This is extremely surprising coming from DHS (although correct!). 

DHS also noted that the court had previously found the H-4 EAD rule to be lawful, which confirms that putting a stop to the issuance of H-4 EADs while litigation on this issue continues is not necessary. 

For now, this is good news! Unlike in the past, DHS made no mention of plans to rescind the H-4 EAD rule.  On the contrary, it explicitly found the position of Save Jobs USA to be weak and dated.  Of course, this could be a signal to Save Jobs USA to strengthen its arguments by updating the data it relies on or it could be a sign that the agency is not interested in litigating this matter.  That said, for now, we can expect USCIS will continue processing H-4 EADs for the foreseeable future.  

We’ve attached the brief for your reading pleasure (it’s very short!).  Find it here.

This alert is for informational purposes only.  Please contact us if you would like to discuss this development further.