Spouses of certain H-1B visa holders can work in the US.
The spouses of some of the H-1B visa holders, on H-4 visa, can continue to work or apply for and get an Employment Authorization Document (EAD) in the United States, after a judge threw out a lawsuit by a tech workers group, Save Jobs USA, who complained the spouses once they get EAD would compete with and take away jobs from American workers.
Save Jobs USA, a group of former Southern California Edison computer workers, allegedly replaced by foreign workers with H-1B visas, sued he Department of Homeland Security (DHS) in April, 2015 to stop the rule of some H-4 visa holders getting an EAD card, which would allow them to take up any job in the US.
The lawsuit, filed in D.C. federal court, challenged a new rule by the DHS agency’s ‘Employment Authorization for Certain H-4 Dependent Spouses.’ Save Jobs claimed the rule would increase competition for American workers in the tech field, who already struggle to gain employment in the face of foreign workers.
U.S. District Judge Tanya S. Chutkan declined to stop the policy in May 2015, finding that Save Jobs failed to show its members would suffer harm with the rule’s implementation, according to Courthouse News Service.
“There is no indication, and Save Jobs has not provided any evidence, that it is certain that H-4 visa holders will apply for IT jobs and compete with Save Jobs members,” Chutkan wrote. “Save Jobs is correct that this could happen, and eventually it may in fact happen. But at this stage, it is entirely speculative whether any H-4 visa holders will ever apply for IT jobs at SCE, IT jobs in California (where the members of Save Jobs reside), or IT jobs at all.”
Chutkan found the same in her September 27th decision to dismiss the suit.
“Here, there is simply no evidence that the H-4 Rule was targeted at the tech field, or that even one H-4 visa holder has sought or will seek a tech job in competition with plaintiff’s members,” Chutkan wrote. “Plaintiff’s argument, without evidence, is bare speculation, and the injury it contemplates is insufficient to establish standing.”
Chutkan acknowledged that H-4 visa holders may indeed compete with members of Save Jobs for employment in the tech field, but ultimately found there was no evidence to prove the group’s claims.
“While plaintiff’s members allege past injury from being replaced by H-1B visa holders at their previous employment, the source of that injury is unrelated to the H-4 Rule,” Chutkan wrote. “And, if in future years the H-1B program is again oversubscribed, plaintiff offers no evidence that this will be due to the H-4 Rule, nor why the court should consider this an injury at all given that Congress sets the quotas for the visa program, not DHS.”
The group’s claims that the rule exceeded Homeland Security’s authority also failed, Chutkan found.
“[I]n light of the broad delegation of authority Congress conferred to DHS to set rules regarding employment authorization and its thorough consideration of the relevant factors in its decision-making, the court would likely conclude that DHS’s interpretation of its authority under the [Immigration and Naturalization Act] is not unreasonable, and the H-4 Rule is a valid exercise of this rulemaking authority,” Chutkan said.
The Immigration Reform Law Institute represented Save Jobs USA.
The lawsuit by Save Jobs USA comes in the wake of similar lawsuits by the Washington Alliance of Technology Workers, who have tried futilely to prevent the extension of Optional Practical Training (OPT) for foreign students who graduate from accredited US universities and educational institutions with an F-1 visa.