Ustun Law Group, PLLC

Background

In this action brought under the Administrative Procedure Act (“APA”), Plaintiff Save Jobs USA challenged the Department of Homeland Security’s (“DHS”) promulgation of a final rule allowing certain H-4 visa holders to apply for employment authorization. Earlier, in this case, the Plaintiff moved for a preliminary injunction, which this court denied on the grounds that it failed to establish imminent irreparable injury. Plaintiff’s motion for summary judgment is DENIED and Defendant’s motion for summary judgment is GRANTED. The defendant’s motion to strike is GRANTED IN PART and DENIED IN PART.

H-4 Visa Eligibility:

Subsection H of the Immigration and Naturalization Act authorizes DHS to admit foreign workers into the United States to engage in certain types of labor. Subsection H-1B permits employers to hire foreign workers in a “specialty occupation,” most relevantly tech jobs, for an initial period of three years, extendable for three additional years. Id. Spouses and minor dependents of H-1B visa holders are permitted to reside in the U.S. with H-4 visas

Labor Certification and Legal Permanent Status:

Employers of H-1B visa holders who wish to transition to legal permanent resident (“LPT”) status must obtain a Department of Labor certification that there are no U.S. workers who are able, willing, qualified, and available to perform the job, and that the wages and working conditions of American workers will not be adversely affected

What is AC21?

Due to frequently oversubscribed quotas for the number of H-1B visa holders who may transition to LPT status, there are long delays in this process, forcing many visa holders who have applied to transition to leave the U.S. when their visas expire. To prevent disruption for employers and families, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”), which permits extending H-1B visas past the sixth year for those applying for LPT status.

Who is Eligible For H4-EAD?

Not all H-4 visa holders are eligible for EAD. The H-4 Rule at issue enables a subset of H-4 visa holders to apply for Employment Authorization Documents (“EADs”), which would allow them to work in the U.S. To be eligible, the H-4 visa holder’s H-1B spouse must be transitioning to LPT status by way of either an extension past their sixth year under the AC21 or having received an approved labor certification (called a Form I-140 petition). The rule aimed to alleviate the financial and emotional burden placed on H-1B visa holders and their families during this long period in which only one spouse may be employed. It underwent a notice-and-comment procedure, and the final rule took effect on May 26, 2015.

Court’s Role in APA action

In an APA action, the court’s role at the summary judgment stage is to decide:

“as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.”

A court must set aside an agency action that is :

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

The plaintiff bears the burden of establishing the invalidity of the agency’s action The court’s review is “highly deferential” and begins with a presumption that the agency’s actions are valid. The court is “not empowered to substitute its judgment for that of the agency,”, but instead

  • Must consider only “whether the agency acted within the scope of its legal authority
  •  Whether or not the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record
  • Whether the agency considered the relevant factors,” Thus, all that is required is that the agency’s decisions provide “a rational connection between the facts found and the choice made.”

SaveJobsUSA(Plaintiff) also  did contend that it has met the constitutional minimum requirement for standing because its members have suffered four specific injuries-in-fact caused by the H-4 Rule:

(1) the rule creates increased competition for jobs from H-4 visa holders

(2) the rule creates increased competition for jobs from H-1B visa holders

(3) the rule confers a benefit on its members’ H-1B competitors

(4) the rule deprives its members of statutory protections from foreign labor.

The plaintiff argued that

  • It’s members face imminent increased competition in the labor market from H-4 visa holders because, if these workers are granted Employment Authorization Documents, they may apply for the same jobs in the tech field that Plaintiff’s members currently seek.
  • Plaintiff submitted evidence that three of its members are active participants in the labor market for tech jobs

In summary: the H-4 Rule enables a subset of H-4 visa holders to apply for EADs, which permit them to apply for and secure paid employment in any job in the U.S. labor market. While Plaintiffs may be correct in speculating that H-4 visa holders will seek tech jobs in competition with its members, there is simply no evidence before the court to show that that will happen. Therefore, because Plaintiff cannot establish that its members face an imminent or actual injury, the court need not engage in the further analysis regarding causation, redressability, or ripeness, and the court concludes that Plaintiff lacks standing to proceed with this case.

Conclusion of September 27, 2016, Hearing from US District Judge

Given the Plaintiff’s lack of standing in this case, the court makes no final determination on the merits of the Plaintiff’s APA claim. However, in light of the broad delegation of authority Congress conferred to DHS to set rules regarding employment authorization in  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 INA is not unreasonable, and the H-4 Rule is a valid exercise of this rulemaking authority

More details about this hearing can be found here

The Aftermath of September 2016 Hearing

SaveJobsUSA challenged the rule in the district court, arguing that it exceeded the Department’s statutory authority, and that, in adopting it, the department acted arbitrarily and capriciously. The parties cross-moved for summary judgment on standing and the merits. The district court, finding that Save Jobs failed to demonstrate that the rule would cause its members any injury and thus lacked Article III standing, granted summary judgment in the Department’s favor. Save Jobs appealed.

  • Following the early 2017 change of presidential administrations, the court held the case in abeyance, initially to allow the incoming administration time to consider the case and later because the Department expected to begin the process of rescinding the rule
  •  In December 2018, the court removed the case from abeyance and granted Immigration Voice and two of its members permission to intervene in order to defend the rule

Save Jobs argued as it did in the district court:

  • That the rule harms its members in several ways, including by increasing competition for jobs from H–1B visa holders.
  • The doctrine of competitor standing recognizes that “when regulations illegally structure a competitive environment—whether an agency proceeding, a market, or a reelection race—parties defending concrete interests in that environment suffer legal harm under Article III

The Department insists that:

  •  Any injury to Save Jobs is caused by the H–1B visa program, not by the rule
  • But Save Jobs has shown that the rule will cause more H–1B visa holders to remain in the United States than otherwise would—an effect that is distinct from that of the H–1B visa holders’ initial admission to the country
  • The Department also contends that Save Jobs has failed to demonstrate that its members are “direct and current competitor[s],”  of H–1B visa holders
  • Department argued that because H–1B visa holders “by definition are already employed,”
  • Save Jobs must provide “more evidence that [H– 1B visa holders] are seeking new jobs in the same market as Save Jobs’ members

Conclusion of the Lawsuit Until Now

  • Given that the merits here involve complex questions about the scope of the Department’s authority, which the Department did not brief on appeal, and recognizing the substantial possibility this case will be mooted by the Department’s promised rescission of the rule
  • Court thinks it best to remand to give the district court an opportunity to thoroughly assess and finally determine the merits in the first instance, the merits of Plaintiff’s APA claim” but  refrained from “mak[ing] no final determination”)
  • Accordingly, the court reversed the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion

More details about this case can be found here