Federal judge to rule on motion to halt implementation of H-4 EAD regulation

Washington, D.C. – A federal judge held a hearing Thursday on a motion to stop the Department of Homeland Security from implementing its new regulation allowing certain H-4 dependent spouses of H-1B visa holders to apply for work authorization. The organization Save Jobs USA filed the motion for a preliminary injunction as part of a lawsuit it brought April 23 against DHS challenging the regulation. The new rule enables certain H-4 spouses to apply for employment authorization and is scheduled to take effect May 26.

In questioning the attorney representing Save Jobs USA, Judge Tanya S. Chutkan appeared skeptical and emphasized that courts only intervene under extreme circumstances to grant preliminary injunctions. A preliminary injunction would stop the rule while the court decides the main issues of whether DHS exceeded its authority in promulgating the regulation. The judge questioned whether members of the organization will suffer concrete harm if the rule goes into effect and expressed doubt regarding whether the harm they allege would be irreparable. To succeed, the group must show that its members will suffer concrete and irreparable harm as a result of the rule. Save Jobs USA, an organization of computer workers, claims the rule will harm its members because they will be in direct competition with H-4 dependent spouses for jobs in the technology industry.

The judge indicated that she would rule on the motion “shortly” and we expect that she will issue a decision in the days ahead. The case is Save Jobs USA v. U.S. Department of Homeland Security, U.S. District Court for the District of Columbia, C.A. No. 1:15-CV-615.

In a case filed last year in the same court, a judge found that another group of American technology workers had standing to challenge the 17-month STEM Optional Practical Training program. That case, Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, remains pending in the U.S. District Court for the District of Columbia.

BAL Analysis: Unless the court accepts Save Jobs USA’s claims and grants the preliminary injunction blocking the rule, the H-4 rule will take effect May 26 and USCIS will begin to accept applications as scheduled.

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