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Litigation over H-4 EAD Rule Rescission To Move Forward

The Court of Appeals for the D.C. Circuit has added Immigration Voice, a group that represents high-skilled foreign nationals, to defend the H-4 EAD Rule. Save Jobs USA v. United States Department of Homeland Security.

The H-4 EAD Rule provides work authorization for spouses of certain H-1B workers who are in the green card process.

Save Jobs, a group of technology workers who allege that they have been displaced by foreign nationals, challenged the H-4 EAD Rule in 2015, soon after the Rule was instituted by the Obama Administration. Originally dismissed, the case made it to the D.C. Circuit in 2016. The Trump Administration changed the dynamics of the case because it aligned with Save Jobs and declined to defend the Rule. Furthermore, the Administration contended that it was planning to rescind the Rule, which would make the case moot. Since March 2017, the government has requested five continuances, asking the Court to hold the case in abeyance while it prepared to rescind the Rule through the rulemaking process. These requests were granted, but the Court, as well as immigrants who would be affected by the rescission of the Rule, have grown tired of the uncertainty and tired of waiting.

Immigration Voice asked to intervene in the case to defend the Rule. On December 17, 2018, the D.C. Circuit Court granted that motion and removed the case from abeyance. New briefs and reply briefs are scheduled to be submitted between January 16, 2019 and March 15, 2019.

In another effort to retain H-4 EADs, Representatives Anna G. Eshoo (D-Cal.) and Zoe Lofren (D-Cal.) introduced a bill that would prevent the Administration from revoking the H-4 EAD Rule. Referring to those who are on H-4 EADs as “American citizens-in-waiting,” Lofgren complained that “[p]rohibiting H-1B dependent spouses from working is of no benefit to our country” and that if the Rule is abolished, “many of these families that can contribute so much to our workforce will simply move to countries with a more sensible approach to immigration.”

In the meantime, the Administration continues to contend that it is working toward revoking the H-4 EAD Rule. Some have predicted that a move in that direction will be made before the end of 2018. Revocation of H-4 EADs will remove approximately 100,000 of mostly highly skilled workers from the workforce at a time when U.S. employers are struggling to fill technical jobs.

Jackson Lewis P.C. © 2019

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About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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