Why courts will reinstate H4 EAD, if Trump administration revokes it

Image via USCIS.gov

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:

  1. 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)

  1. 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.

  1. 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.

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10 Comments

  1. H4 EAD is a disastrous policy for America on a number of reasons. The only cheer leaders for this policy is immigration attorneys (looking for money) and the corporations so that they can hire for cheap. Without LCA, H4 EAD folks become same as US citizens- a wrong equivalence, which distorts the market balance of demand and supply of labour.
    On the practical side, there are a few (maybe less than 10) folks who are brilliant, enterprenuers- who need to be given due dignity – this is missing. But the vast majority of H4 EAD folks run the counters in walmart and target- which the less privileged usa citizens should be doing. A lot of them got into IT companies through favouritism- thereby encouraging corruption.
    Economic hardship do not stand because by definition H1 is a highly paid job making way above the USA median salary for household.
    Women’s right is also not the cause here, because by definition, H1 is a gender-neutral visa program.

    Instead, USCIS should stop hammering the H1 guys and provide them the EAD as soon as 140 is approved, not to their spouses.

    • Tanay Mishra

      Why are you posting the same message twice, using a different alias?? How dumb can you get? “Bob”, yeah that name sure explains it all….

  2. H4 EAD is a disastrous policy for America on a number of reasons. The only cheer leaders for this policy is immigration attorneys (looking for money) and the corporations so that they can hire for cheap. Without LCA, H4 EAD folks become same as US citizens- a wrong equivalence, which distorts the market balance of demand and supply of labour.
    On the practical side, there are a few (maybe less than 10) folks who are brilliant, enterprenuers- who need to be given due dignity – this is missing. But the vast majority of H4 EAD folks run the counters in walmart and target- which the less privileged usa citizens should be doing. A lot of them got into IT companies through favouritism- thereby encouraging corruption.
    Economic hardship do not stand because by definition H1 is a highly paid job making way above the USA median salary for household.
    Women’s right is also not the cause here, because by definition, H1 is a gender-neutral visa program.

    Instead, USCIS should stop hammering the H1 guys and provide them the EAD as soon as 140 is approved, not to their spouses.

  3. Tanay Mishra

    Whatever is written in this piece is just utter rubbish, I can’t believe these guys are lawyers! Wonder where they got their JDs or whatever credentials them claim. Its pure fantasy to assume that an benefit or claim signed into law cannot be revoked or rescinded. Just like the INS was abolished and replaced by USCIS, so also many other govt. agencies come into being and are sunset when their time is past. Ditto for the laws of this country, some of which are on the books for decades but seldom used or enforced. Tort reform anyone? There is NO lawful basis whatsoever let alone legal precedent and due process for any temporary visa holders (and they are ALL temporary) to assert any right or privilege under the US constitution. You heard that right – the US constitution is for US citizens only – it is NOT for the world, not for Europeans, not for Mexicans, not for the Japanese, and certainly not for Indians flooding the country on H1B and L1 visas. So stop conflating legal/illegal immigration, DACA/DALCA/dreamer crap, and all the other pseudo-legal nonsense that you people keep harping on. There is simply no truth in it and it only misleads your dimwit readers. This President as with others before him has the only and final superseding authority through executive privilege to overturn and veto any “arbitrary or capricious” act of Congress that may be deemed to be unfair, unjust or otherwise to the American people. So there.

  4. Paparao yeluchuri

    Can a person who is on H4 open a non profit in USA and can he work for that non profit with out taking salary?

  5. Google stop deleting my comments. Stop surging anti Trump news. Crooked and boring.

  6. Real human rights issue is American citizens getting displaced. And no does not matter what DHS said. Foreign labor comes after citizens and an illegal EO can be cancelled. BTW Google needs to take a break from surging anti Trump news day in and day out. Obviously crooked and boring.

  7. So the Obama administration can create the H-4 EAD but once created it can not be canceled.

  8. sujata tibrewala

    This is also a human rights issue, forcing spouses of H1B holders to be dependant and hence being prey to domestic abuse and violence. Thanks for posting this

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