H-4 EAD Appeal – DHS asks for 3 month extension

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H-4 EAD Appeal – DHS asks for 3 month extension

By ImmigrationGirl September 27, 2017 Legislation 8 Comments

 

We’ve all been waiting for an update on what will happen to the H-4 EAD. Today is the deadline for the two parties in the lawsuit to file with the court their wishes for how the case should proceed after a 6 month delay was granted earlier this year. Save Jobs filed their brief a few days ago and DHS has just filed.

A little history:

A month before the rule that would allow certain H-4 visa holders the opportunity to work was set to take effect, Save Jobs USA filed a lawsuit seeking to stop the rule from being implemented. The plaintiff in the lawsuit is a group of computer workers who were formerly employed at Southern California Edison.

Save Jobs argued that the H-4 EAD should have been issued through legislation, not through regulation and therefore the rule should be vacated. The group further alleges that they were displaced by H-1B workers and will now face even more competition from H-4 EAD holders.

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.

Save Jobs USA immediately filed an appeal to the United States Court of Appeals for the District of Columbia Circuit…and then the election happened.

First, the government requested an extra 60 days to respond to the appeal to allow “incoming leadership personnel adequate time to consider the issues.”

Then, the government asked that the case be held in abeyance for another 180 days to give DHS time to reconsider the H-4 Rule and decide whether issuance of a notice of proposed rulemaking relating to it is appropriate. The government indicated that it would update the court every 60 days concerning the Department’s review and inform the Court promptly should it determine whether a new rulemaking is or is not appropriate before 180 days elapses.

The court granted the stay on June 23, 2017 and directed the parties to file further motions on how they wish to proceed by September 27, 2017.

Save Jobs filed its Motion and requested the Court to reschedule briefing and oral argument so that the case can be finally concluded.

DHS has now requested the appeals Court to hold the H-4 EAD case in abeyance AGAIN through December 31, 2017, to permit it to complete the review  mandated by Executive Order 13,788 and also to adequately assess how to act regarding the H-4 Rule.

DHS had to refocus its review of the H-4 Rule to ensure that it meets the newly announced priorities and to decide whether to undertake a new rulemaking concerning the H-4 Rule and comply with the President’s Order.

 

The President’s Buy American and Hire American Executive Order provides that “n order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).” Id., § 2(b). To effectuate this policy, the Order instructs the “Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security” to, “as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system. . . .”

Consistent with the President’s directive, DHS is still assessing whether it is appropriate to issue a notice of proposed rulemaking relating to the H-4 Rule. DHS is still evaluating next steps, and
plans to announce its intentions in the fall Unified Agenda, which it expects the Office of Management and Budget (OMB) to publish by the end of the calendar year 2017.