Chevron’s End Raised in H-1B Spousal Work Permits Appeal in D.C.

A group representing US-born tech workers argues that a US Supreme Court decision curtailing deference to agency authority bolsters a challenge to employment authorization for spouses of H-1B visa holders.

The justices declined to take the case last year, leaving in place a district court ruling that tossed the lawsuit from Save Jobs USA. But an appeal is ongoing at the US Court of Appeals for the District of Columbia Circuit, where the group aims to invalidate a program extending employment eligibility to more than 90,000 H-4 visa holders.

The district court last year found that the Department of Homeland Security had clear authority under the Immigration and Nationality Act to establish the employment authorization program for H-4 visas holders, most of them spouses of tech sector workers. Employer groups like the US Chamber of Commerce have argued the option for spouses to work in the US was key for recruitment of high-skilled foreign workers.

In a brief filed Monday to the D.C. Circuit, Save Jobs argued the high court’s decision in Loper Bright Enterprises v. Raimondo, reaffirmed the “major questions” doctrine disregarded in the district court’s ruling. In that decision, the justices overturned a long-standing principle that regulatory agencies should receive the benefit of the doubt when statutory text is ambiguous.

Save Jobs argued that under Loper Bright, the absence of any specific mention of employment connected to H-4 visas under the statute “does not constitute a delegation to the Department of Homeland Security (DHS) to authorize such employment.”

The lack of any discernible statutory principle to which the H-4 rule conforms, statutory silence on alien employment, and application of the major question doctrine demonstrate that the lower court erred in finding the work authorization program was within the Department of Homeland Security’s authority, Save Jobs argued in its brief.

DHS did not immediately respond to a request for comment.

In her 2023 ruling, Judge Tanya Chutkan wrote that the claims that Congress had never delegated the agency authority to extend employment authorization to visa holders “runs headlong into the text of the (Immigration and Nationality Act), decades of executive-branch practice, and both explicit and implicit congressional ratification of that practice.”

Attorneys and legal scholars predicted that the end of Chevron deference would lead to a flood of new challenges to the rulemaking authority of federal agencies, including for immigration regulations. But many observers didn’t expect the case to necessarily weaken the legal basis of employment authorization programs for immigrants or foreign college graduates because DHS can argue it has clear authority under the statute.

Save Jobs is represented by the Immigration Reform Law Institute while DHS is represented by the Department of Justice.

The case is Save Jobs USA v. DHS, D.C. Cir., No. 23-05089, notice filed 7/1/24.