H4 EAD Update – Court denies request for deadline extension
H4 EAD update, perhaps one of the most nerve wracking topic among educated immigrants and their spouses. Earlier, court granted a 6 month delay so DHS and Save Jobs can come up with responses. Save Jobs filed their amendment and DHS filed it on September 27th. The new government (Who is the third plaintiff after last year’s election) requested 180 days to come up with a response to court order.
What is the H4 EAD lawsuit?
Few weeks before H4 EAD visa holders could start working, Save Jobs USA filed a lawsuit seeking to stop the rule. A group of computer workers formerly employed by Southern California Edison formed Save Jobs USA’s plaintiff. They argued instead of a legislature passing H4 EAD, a regulation did. Hence, they argued courts must vacate the rule. The group further alleged they were displaced by H1B workers and face more competition from H4 EAD workers.
What happened then?
The court sided with the then Obama government. It found only a subset of H4 visa holders eligible to obtain EAD. In addition, the court also indicated Save Jobs USA did not establish its argument. Finally, the court stated that a Congress delegated authority set rules regarding employment authorization and DHS was reasonable in using that authority to grant EADs.
The 2016 Election and President Donald Trump
Once Donald Trump became president, Save Jobs again filed an appeal at the US court of appeals at DC circuit. The new government (Enter 3rd plaintiff) requested 60 days to respond. Then, government again requested a 180 day freeze so DHS can reconsider H4 EAD based on the executive order issued by the president. The court granted the stay requested by government. However, directed DHS and Save Jobs to file further motions on how they wish to proceed by September 27, 2017.
Save Jobs filed its motion and requested the court for oral argument to conclude the case. DHS on September 27th ,again requested the court to hold H4 EAD case in abeyance until December 31, 2017. DHS wanted this freeze to review the president’s executive order and assess how to go about with H4 EAD. Which means as of now 2 out of 3 plaintiff’s have responded (DHS and Save jobs). While the new government is yet to.
November 17, 2017 H4 EAD Update
Court denied the 180 days deadline extension requested by the government. And asked the government to file their motion by 2nd January ,2018. The new administration’s stand currently is against immigration and cancelling H4 EAD status. So the government will likely file a response to abolish H4 EAD. However, AILA and other organizations plan to oppose the move. As a result, nothing changes for now. All H-4 EADs remain valid until an actual judgement gets passed. For now the good news is that you can apply for H4 EAD, if eligible. New EADs will continue to be adjudicated by USCIS. Any current motion filed by Government until January 2nd, does NOT impact the current rule in place.
November 22, 2017 – As reported by Breitbart
Breitbart, A news outlet backed by Steve Bannon reported today that Officials at the Department of Homeland have drafted plans to end H4 EAD. A regulation to end the H4 giveaway is “on the table” an agency official told Breitbart News. If published in the federal register, it will be enforced after 60 days but likely will be tangled up in business-funded lawsuits. Immigration lawyers (AILA) and business groups are already are promising to block the regulation with lawsuits. We are tracking this story closely and will keep you all posted.
What does the executive order tell DHS?
“In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, 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 evaluating next steps. Rumors about DHS backing the government this time is floating around. DHS plans to announce its final intentions by the end of the calendar year Dec 31,2017. The new government will file its response on 2nd January, 2018. And a final judgement on H4 EAD follows after that. Keep your fingers crossed!