Lawsuit Seeks to Block New DHS Rule Granting EADs to Certain H-4 Spouses

As previously reported, beginning on May 26, 2015, the U.S. Department of Homeland Security (DHS) will begin the implementation of a new rule allowing for Employment Authorization Documents (EADs) to be issued to certain H-4 dependent spouses of H-1B workers who are in the process of seeking employment-based lawful permanent resident status in the United States. Meanwhile, on April 23, 2015, Save Jobs USA, a group of tech workers, filed a lawsuit in federal court seeking to enjoin the implementation of the DHS new rule.

The New Rule for H-4 Spouses:

Individuals in H-4 status will be eligible only if their spouses are in H-1B status and:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-First Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). AC21 permits certain H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

USCIS has informed the public that it is in the process of updating the form and instructions relating to EADs for individuals in H-4 status. Pending the publication of the updated form and instructions, USCIS has provided some limited information relating to the eligibility requirements and filing procedures. During a February 26, 2015 stakeholder teleconference, USCIS provided the following information, which could change when the updated form and instructions are released:

  • It will be acceptable for the EAD application to be filed concurrently with an application for a change of status or extension of stay, and even concurrently with the principal’s application for H-1B status, if the concurrent filing takes place on or after May 26, 2015.
  • Eligibility is permissible if the H-1B principal has changed employers, so long as he or she is maintaining status with a new H-1B employer, and the I-140 from the prior employer has been approved and has not been revoked.
  • The application may not be filed until the I-140 petition has been already approved.
  • The EAD processing time deadline will be 90 days. However, the 90-day period will not begin until the underlying application for a change of status or extension of stay has been adjudicated. There will be no premium processing for the EAD application.
  • The EAD will not be restricted to a particular field, occupation, or employer, and there is no cap or limit on the number of H-4 EADs USCIS is allowed to issue per year.

USCIS expects to release the updated form and instructions close to May 26, 2015.

The Federal Lawsuit Seeking to Enjoin the New Rule:

The lawsuit, filed by Save Jobs USA in the U.S. District Court for the District of Columbia, seeks to vacate the H-4 rule and to permanently block DHS from granting work authorization to individuals in H-4 status. Save Jobs USA consists of tech workers who were employed by Southern California Edison until they were allegedly replaced by foreign nationals on H-1B visas. The lawsuit argues that DHS does not have statutory authorization to allow individuals in H-4 status to work. The group alleges that the H-4 rule will harm its members because it would increase the number of economic competitors.

DHS moved the Court to dismiss the lawsuit, arguing that Save Jobs USA lacks standing to challenge the new DHS rule, because it has not demonstrated that its members are direct competitors with any potential beneficiaries of the new H-4 rule. Save Jobs USA responded that nearly anyone in the labor market could challenge the H-4 rule, although it emphasized that its members have additional injuries because they were allegedly replaced by foreign workers in H-1B status.

Although the H-4 rule is expected to take effect on May 26, 2015, a preliminary injunction, if granted by the District Court, would temporarily block it until the lawsuit is resolved.

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