Today, the U.S. Court of Appeals for the District of Columbia upheld the lower court ruling in favor of the government in a legal challenge to a rule allowing certain H-4 spouses to apply for employment authorization documents.

Key Points:

  • Issued during the Obama administration in 2015, the Department of Homeland Security regulation — “Employment Authorization for Certain H-4 Dependent Spouses” — allows certain spouses of H-1B visa holders to work in the United States.
  • Save Jobs USA, a group representing U.S.-born tech workers, appealed the U.S. District Court for the District of Columbia’s March 2023 ruling in favor of the government. The group argued that DHS lacked authority to allow H-4 spouses to work in the United States.
  • In upholding the district court’s decision, Circuit Judge Justin R. Walker wrote for the court, “This court has already interpreted the relevant provisions of the [Immigration and Nationality Act] to answer a similar question in favor of DHS” in the litigation challenging Optional Practical Training (OPT) for F-1 students. “Because Save Jobs USA has not meaningfully distinguished this case from that binding precedent, we affirm the district court’s grant of summary judgment.”

Additional Information: Save Jobs USA first filed a lawsuit challenging the H-4 employment authorization rule in 2015. The litigation was put on hold while the Trump administration considered whether to rescind the regulation. After the Biden administration took office, the parties filed motions for summary judgment, ultimately resulting in the March 2023 decision favoring the government.

Leading companies and business organizations filed an amicus brief in the lower court case supporting the H-4 rule, saying eliminating H-4 work authorization “would not only siphon off U.S. gross domestic product, but gift that productivity — and the innovation that comes with it — to other nations.”

BAL Analysis: Today’s ruling upholds eligible H-4 spouses’ ability to work in the United States. BAL will continue following the issue and provide updates as they become available.

This alert has been provided by the BAL U.S. Practice Group.

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