Lawsuit seeks to block H-4 spousal work rule

A lawsuit has been filed that seeks to stop the Department of Homeland Security from implementing the new regulation that allows H-4 dependent spouses of H-1B employees to apply for work authorization.

The complaint, filed April 23, alleges that DHS exceeded its authority in promulgating the rule and asks a federal court to vacate it and permanently enjoin the agency from issuing work authorization to H-4 spouses. The rule is scheduled to take effect May 26.

The organization that filed the lawsuit, Save Jobs USA, claims its members will be harmed by the H-4 regulation because the rule will increase the number of H-1B and H-4 workers who are in direct competition with them for jobs.

The H-4 regulation extends work authorization to certain H-4 visa holders whose H-1B spouse has an approved I-140 petition or has been granted an extension of stay beyond the initial six-year H-1B period.

Save Jobs USA asserts that it has standing to sue based on three of its members who are former computer workers who lost their jobs. According to the complaint, the three individuals “have all been replaced by H-1B workers and remain in competition with H-1B workers, and soon H-4 visa holders, in the job market.”

The legal claims are that DHS lacked statutory authority to grant work authorization to H-4 visa holders, ignored labor protections that require the Labor Department to certify that a foreign worker will not adversely affect American labor conditions, reversed longstanding policy not to allow H-4 spouses to work and failed to gauge the impact of the rule on American workers.

The lawsuit points out that DHS has said the rule intends to help businesses retain H-1B workers and that an estimated 179,600 spouses may be eligible to apply for work authorization under the H-4 rule.

“The H-4 rule is thus designed to attract additional H-1B workers to compete with Save Jobs USA members and to retain competitors that would otherwise leave the market,” the lawsuit alleges.

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. The complaint can be viewed here.

BAL Analysis: To succeed in blocking the rule, the group will have to prove standing based on actual, not hypothetical, injury that it can show is caused by the H-4 regulation. The lawsuit closely mirrors a legal challenge by a related group of tech workers that seeks to overturn a 2008 regulation that allows F-1 students to obtain work authorization. That suit was filed last March and remains pending.

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