A profound moment in immigration history is upon us. Through change in administrative rules, certain H-4 visa holders were able to begin applying for work authorization on May 26. This privilege did not come about easily. Activists, including H-4 spouses themselves, fought long and hard for it. While they had been advocating for years, the first glimmer of hope came in 2011 when the Department of Homeland Security proposed a new rule to extend work authorization to some within their ranks. But with still no action, supporters in 2014 stepped up their game and submitted their own petition to the White House, sparking engagement from the administration.
Almost four years after first being proposed, the rule became final in February, 2015. USCIS then announced it would begin accepting employment authorization applications in May. At a stakeholder meeting to discuss the new rule, USCIS Director Leon Rodriguez described how impressed he was by the persistence of advocates on this issue. And he revealed a rare insight into what happens to the targets of such advocacy — people like himself. Brand new to the position of director, and no doubt still settling in, he said he was fielding emails and phone calls every 15 minutes for eight months from people telling their stories of hardship. I am sure he felt the pressure!
So desperately needed, the new rule will allow H-4 visa holders to apply for work permits if their H-1B spouses have an approved I-140 or if they have had their H-1B extended beyond six years. It does not go far enough to allow all H-4 visa holders to get work authorization.
Incidentally, the H-4 rule was almost thwarted by a lawsuit filed by the group, Save Jobs USA (SJU), made up primarily of former technology workers at Southern California Edison (SCE). SJU wanted a preliminary injunction to stop the rule from taking effect this week.
In the suit, Save Jobs USA v. US Department of Homeland Security, SJU claimed that H-4 visa holders will make it harder for its members to find work. The group represents former SCE workers who claim they were fired from their positions and made to train H-1B replacement workers as a condition for receiving their severance packages. The organization argued that the new rule favoring H-4 spouses is arbitrary and capricious and must be invalidated because DHS lacks the authority to allow these spouses to work in the U.S. However, the law requires SJU to prove that without preliminary relief, its members would likely suffer irreparable harm and that issuing the injunction is in the public interest.
To meet the standard of irreparable harm, SJU had to prove, with sufficient evidence, that the purported injury is “certain, great, actual, imminent and beyond remediation.” To support its motion, the group submitted affidavits from three members who were former IT employees at SCE.
It also cited advertisements from IT placement firms seeking H-4 visa holders as evidence of competition. DHS argued — and the court accepted — that the ads were not for jobs but rather to provide training for H-4 visa holders.
The court held that SJU failed to meet the burden of proof for a preliminary injunction. SJU had argued that the harm was real because there would be increased competition from H-4 visa holders. But the court countered that the H-4 spouses will not be limited in their employment and could apply for jobs in retail, finance and myriad other industries. There was no proof they would apply for IT jobs and compete with SJU members. Speculative economic loss, the court said, was insufficient to prove severe loss. The court also held that the purported injury was not imminent since it takes months to process an application for employment authorization and it was uncertain when or if the competition would begin. The court also held that there was no harm beyond remediation because SJU members would find themselves in this same situation, with or without preliminary relief.
The court did acknowledge that both parties have compelling arguments: SJU seeks to protect its members while DHS would face difficulties if the H-4 employment authorization program, years in the making, had to be delayed. The court made no indication as to whether one argument was more compelling than the other.
In sum, SJU lobbed a Hail Mary in the hope of stopping this rule from being implemented. Luckily, it didn’t work. DHS’ win was not only a win for that agency, but for all advocates, including AILA. And it’s a victory for H-4 spouses and their families who have been fighting this battle for years. What a relief that we won’t have a repeat of the unfortunate circumstances playing out in Texas v. United States, where DAPA and extended DACA applicants still face an uncertain future. And although the case is not closed, for now, we can all feel victorious for our clients.
My hope is that H-4 visa holders who quickly find jobs will continue to communicate with us so we can collate evidence proving that the U.S. economy is better for having more resourceful and skilled workers in every industry. It would also prove that those who opposed the rule were wrong. And I hope that this proof will also pave the way for all H-4 visa holders to be eligible for work authorization, just like spouses of E-2 and L-1 visa holders.
Written by Tahmina Watson, Co-Chair of the AILA WA-Parents Committee