Federal Appeals Court Sends H-4 Work Authorization Lawsuit Back to Lower Court for Further Consideration

At a glance

• In the case of Save Jobs USA v. DHS, a federal appeals court has held that a group of U.S. technology workers has standing to challenge the H-4 spousal employment authorization program, overturning a district court ruling.
• The case will now return to the district court, which will address whether the Department of Homeland Security had the authority to create the H-4 work program.
• The decision does not have an immediate impact on H-4 nonimmigrants holding work authorization documents.USCIS continues to accept and adjudicate applications for H-4 work authorization.

The issue

The U.S. Court of Appeals for the District of Columbia Circuit has determined that an advocacy group representing U.S. technology workers has standing to challenge the Department of Homeland Security’s H-4 employment authorization document (EAD) program, overturning a lower court ruling in the case of Save Jobs USA v. DHS.  The court found that Save Jobs showed that its members face actual or imminent labor market competition from foreign nationals because of the H-4 EAD program.

The D.C. Circuit is remanding the case to the U.S. District Court for the District of Columbia, which will consider whether the Department of Homeland Security exceeded its authority when it created the H-4 EAD program.  The district court did not reach this issue in its earlier decision.

What’s next for the H-4 EAD program?

As the Save Jobs lawsuit returns to the district court, the Department of Homeland Security continues to work on a proposal to rescind the regulation that created the H-4 EAD program.   Rescission of the program has been a goal of the Trump Administration for several years, and the Save Jobs case was held in abeyance in the D.C. Circuit while the Administration prepared its long-awaited proposal.  DHS recently indicated that the proposal is not likely to be issued before Spring 2020.  The Save Jobs lawsuit could ultimately be rendered moot by the regulation.

What this means for employers and H-4 nonimmigrants

The appeals court decision does not have an immediate impact on foreign nationals who hold or are applying for H-4 EADs.  Eligible H-4 spouses can continue to seek new or renewed work authorization under current rules.  USCIS continues to accept and adjudicate these filings. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.