Implementation of H-4 EAD regulation begins after government defeats legal challenge

Washington, D.C. – Judge Tanya S. Chutkan, ruling on Sunday, denied a motion to block the H-4 spousal work rule from taking effect after hearing arguments last week. The new rule promulgated by the Department of Homeland Security, which allows certain H-4 spouses of H-1B workers to apply for employment authorization, has therefore gone into effect today as scheduled.

Save Jobs USA, an organization of computer workers, asked the court to grant a preliminary injunction to stop the rule, claiming that the rule would force its members to compete with H-4 visa holders for technology jobs. The judge concluded that Save Jobs USA failed to meet the standard for granting a preliminary injunction because it did not demonstrate that the injuries it alleged are “certain, great, actual, imminent, and beyond remediation.”

“[A]t this stage, it is entirely speculative whether any H-4 visa holders will ever apply for . . . IT jobs at all,” Judge Chutkan said in a 12-page opinion. Judge Chutkan stated that neither party’s arguments regarding Save Jobs USA’s likelihood of success were sufficient to outweigh those of the other side enough to affect her analysis at this point in the case. Although she did not decide whether Save Jobs USA showed a likelihood that its claims against DHS would ultimately succeed, she noted that the group presented “non-frivolous arguments why its claims might prevail.”

Though the request to halt implementation of the regulation was denied, the litigation has not been dismissed. DHS filed a motion to dismiss the case May 11, and Judge Chutkan has set a deadline of May 29 by which time the parties must submit a proposed briefing schedule for the pending motion.

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.

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