Texas-based Reddy & Neumann says it will sue the administration if H4 EAD is revoked.
As tens of thousands of H4 visa holders still await a review by the White House Office of Management and Budget about the fate of their work permits, granted by the Obama administration, there is a bit of uncertainty about the outcome.
Meanwhile, a federal court that is hearing a petition challenging the legality of the H4 EAD has not yet given their view and the next hearing is scheduled for April 29. Meanwhile the Department of Homeland Security informed the court earlier this month that H4 EAD does not affect the US job market. While that was certainly positive news, the fate of thousands of working women and men remains in question.
The American Bazaar asked immigration lawyers on the options H4 EAD holders have in case the work permit is revoked.
One immigration law firm said, if that happens, there is enough legal ground to sue the administration and get the EAD re-instated. Immigration attorney Rahul Reddy of Reddy & Neumann PC assured said that if the rule is revoked his immigration firm will sue the administration. “We are positive that we have enough reasons to sue the administration as the taking away of work permit of thousands who are contributing to the American economy is an arbitrary action,” he told the American Bazaar. “Not only this, we are confident that we will be able to get the rule re-instated.”
ALSO READ: End of the road for H-4 EAD program? (April 24, 2018)
Reddy’s colleague Emily Neumann explained why such a lawsuit will end up reinstating the H4 EAD. “Regarding potential litigation if DHS proceeds with its plan to eliminate the H4 EAD, I think there are several potential grounds,” she said.
Neumann said that there are three main points on which the attorneys can sue the administration. They are:
- Termination of H4-EAD would be in violation of Administrative Procedure Act
The Administrative Procedure Act (APA) provides remedy for all interactions between individuals and all federal agencies. The APA requires courts to set aside agency action if it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Further, courts have found that a government decision reversing a prior policy is “arbitrary and capricious” when it fails to take into account serious reliance interests. Here, the government’s disregard for the reasonable reliance of thousands of spouses’ awaiting green cards would be the hallmark of an arbitrary and capricious action and an abuse of discretion, and the decision to terminate the H-4 EAD program would therefore be in violation of the APA. In creating the H-4 EAD, the government promised H-1B families that H-4 spouses would be allowed to live and work in the United States as long as they were in line waiting for a green card. Approximately 90,000 (mostly) women reasonably relied on the government’s assurances and made life-altering personal and professional decisions in reliance on the government’s promises regarding the availability of employment authorization if they remained in the United States. Further, the decision to terminate the H-4 EAD could also be found to be arbitrary and capricious because the government itself previously determined that the H-4 EAD is a lawful exercise of DHS’ authority to grant employment authorization, and the government has failed to conduct or provide a reasoned analysis for its change of policy.
ALSO READ: H4 visa-holders’ work authorization is under review: report (February 7, 2017)
- Termination of H4-EAD would violate the due process rights
H-4 EAD holders have constitutionally protected liberty and property interests in their employment authorization benefit conferred. These protected interests exist by virtue of the government’s decision to grant H-4 holders certain benefits. In establishing and continuously approving H-4 EAD applications under a well-defined framework of specific criteria, the government created a reasonable expectation among H-4 EAD holders that they are entitled to the benefits provided under the regulation, including the ability to lawfully work. Employment authorization is uniquely valuable to H-4 spouses awaiting a green card for years on end and revocation of the H-4 EAD effectively deprives these women of the ability to be fully contributing members of society. The ability to renew employment authorization at regular intervals has always been an essential element of the regulation, and the prospect of renewal was one of the primary benefits the government used to induce high skilled workers to remain in the United States to continue to seek permanent residence. The government’s arbitrary termination of the H-4 EAD program and deprivation of the opportunity to renew employment authorization would violate the due process rights of H-4 EAD holders.
- An intent of bias against certain nationalities
The Fifth Amendment forbids federal officials from acting with a discriminatory intent or purpose. USCIS statistics demonstrate that the vast majority of H-4 EAD applicants are of Chinese and Indian nationalities. If a discriminatory purpose motivated DHS to propose the rule to eliminate the H-4 EAD, an equal protection claim could potentially be brought based on pattern of bias against these nationalities.
H4 visa: a primer (updated March 9, 2017)
End of the road for H-4 EAD program? (April 24, 2018)
Trump administration may soon end H-4 Visa Rule: report (February 1, 2018)
Tech industry urges USCIS not to cancel H-4 spouses’ work permits (January 19, 2018)
Trump to end H-4 EAD program for spouses of H-1B workers (December 15, 2017)
Trump administration asks for more time on H4 work authorization (April 4, 2017)
H4 visa-holders’ work authorization is under review: report (February 7, 2017)
H4 visa holders start to get EAD work permits from USCIS (June 29, 2015)
No work permits for H4 visa holders: lawsuit filed by Save Jobs USA (April 27, 2015)
458,177 H4 visas issued in 6 years between 2008-2013 (February 26, 2015)
COLUMN: EAD cards for H4 visa holders: USCIS needs to give it to all of them(February 24, 2015)
EAD cards for H4 visa holders: green cards better solution, says IEEE-USA (February 24, 2015)
H4 visa holders can apply for EAD cards beginning May 26, 2015 (February 24, 2015)
EAD cards to H4 visa holders: Immigration Voice lauds Barack Obama February 24, 2015
H4 visa: a primer (December 9, 2014)
Final rule on work permits for H4 visa holders by December 2014-January 2015(November 23, 2014)
Indian women on H4 visas eager to get back to work (May 8, 2014)
Many H4 visa holders will get work permits this year (May 7, 2014)
For H4 visa holders from India, the X visa all-important (May 26, 2013)
BLOG: The H4 visa conundrum (April 21, 2013)