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Challenge to H-1B Spouses’ Work Permits Turns on Job Competition

Sept. 27, 2019, 7:55 PM

An Obama administration regulation is harming the job prospects of U.S.-born tech workers, an attorney for those workers told a federal appeals court panel.

The regulation was “designed to attract and retain H-1B workers,” John Miano of the Immigration Reform Law Institute told the court. It allows the “entry of aliens into the job market,” and that alone is proof of harm to U.S. workers’ interests, he said.

The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments Sept. 27 in a case that could decide the fate of some 100,000 mostly Indian women who were granted the right to work in the U.S. in 2015. Those spouses of H-1B specialty occupation workers can remain in the U.S. on H-4 visas.

The regulation provides work permits to the H-4 spouses of H-1B workers who are waiting for green cards to become available.

The U.S. tech workers in the case, who were displaced from their jobs at Southern California Edison by H-1B visa holders, say the regulation creates extra job competition and keeps them out of work.

The Department of Homeland Security also acted outside its authority when it implemented the program, the workers say.

Proposed Rescission Missing

The case stalled for nearly two years after the DHS told the court it was working on a new regulation that would eliminate the program. But no proposed regulation has been released, and the agency recently said it would published one in the spring of 2020 at the earliest.

That left the appeals court, which reopened the case last December, wondering what’s going on.

“Why in the Lord’s name is it taking the department so long to revoke this rule?” Judge Laurence H. Silberman asked Justice Department attorney Matthew Glover, who represented the DHS before the court.

Glover responded that the proposal was still undergoing review at the White House Office of Management and Budget, where it’s been since February. That review currently involves “engaging with stakeholders,” he said.

Actual Harm

Arguments in the case were limited to whether the U.S. workers can bring the lawsuit at all. To do so, they had to show that the regulation actually harms them. Resolution of that issue likely will turn on the extent to which competition for jobs can be used to prove that injury.

Glover said Miano hasn’t shown that the H-1B workers and their spouses who benefit from the regulation directly compete with the former SCE workers, who sued after forming the organization Save Jobs USA.

Not all H-1B visa holders benefit from the regulation, Glover said. It only applies to workers who’ve been approved for a green card, meaning the Labor Department has certified that there are no qualified, available Americans for that job, he said.

Silberman, a former undersecretary of labor, said he’s familiar with the labor certification process, adding that those decisions aren’t “made with the same deliberation” as the court uses to make its decisions.

Even if the DOL’s stamp of approval isn’t conclusive proof that a U.S. worker wasn’t passed over for a job, Glover said Save Jobs USA didn’t show that the “computer jobs” the spouses have are the same as the U.S. workers’, or that they are competing in the same California job market.

Anecdotal Evidence

Judge Thomas B. Griffith also expressed concern that the U.S. workers’ evidence of job competition was all anecdotal despite the opportunity to provide statistics. And Judge David S. Tatel pointed out that all evidence of competition involves H-1B workers, not the spouses with work permits.

But the court has held in the past that merely showing that a regulation allows extra job competition is enough, without also having to prove that the competition exists, Miano said.

Carl Goldfarb of Boies Schiller Flexner in Fort Lauderdale, Fla., also said the anecdotal evidence of job competition comes from 2014, a year before the regulation even came out. Goldfarb is representing Immigration Voice, an organization that advocates for immigrants in the green card backlog. The group was allowed to intervene in the case in support of the work permit program.

Even if there was proof of job competition with H-1B workers, there’s no evidence the work permit regulation increased the number of such workers in the country, Goldfarb said.

The U.S. Chamber of Commerce, the Information Technology Industry Council, and the National Association of Manufacturers filed briefs in support of the regulations, but didn’t appear at the oral argument.

The case is Save Jobs USA v. Dep’t of Homeland Sec., D.C. Cir., No. 16-05287, oral arguments 9/27/19.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com