It’s been well over a year since the Department of Homeland Security first indicated its intent to strip some 90,000 foreign nationals of their work permits. The gears may now be in motion for that plan to come to fruition.
The spouses of a subset of H-1B skilled guestworkers—including tech workers, researchers, medical professionals, and others—have had access to work permits since 2015. Despite an early legal challenge, the DHS backed the program until early 2017, when the Trump administration indicated its plan to rescind the permits.
Now, the agency is rushing to complete a proposed regulation ahead of deadlines in the lawsuit, which recently was revived after being put on hold for nearly two years. Eliminating the work permit program would avoid the DHS having to defend it in court, which it likely doesn’t want to do.
Meanwhile, advocacy groups and immigration attorneys are gearing up to fight the proposal to rescind the work permits, so litigation is far from over.
Dormant Case Reopened
The U.S. Court of Appeals for the District of Columbia Circuit Dec. 17 reopened the challenge to the Obama-era regulation that grants work permits to the H-4 spouses of H-1B workers who are waiting for green cards to become available. Briefs in the case are all due by the end of February.
As a result, the agency is highly likely to release a proposal to end the program, something it’s promised since April 2017. The U.S. workers’ appeal from a federal district court ruling against them has been on hold since then to allow the DHS to complete its regulation.
So far it hasn’t materialized. In February 2018, Homeland Security told the court that it was delayed because the agency had to rework its economic analysis. The agency has continued to ask for more time.
“The Trump administration is racing to get out a regulation in the hope that, because of the rulemaking process, the court will then defer” to its reading of the Immigration and Nationality Act, Lynden Melmed of Berry Appleman & Leiden in Washington said in an email to Bloomberg Law.
Homeland Security is likely to face a “hostile judiciary” regardless of when the proposed regulation comes out, said Melmed, who previously served as general counsel of U.S. Citizenship and Immigration Services, the DHS agency in charge of the work permit program. The current administration will need to explain why it believes the regulation goes against the law, the opposite of what the Obama administration argued in court, he said.
Question of Authority
We haven’t seen any evidence demonstrating that the 2015 regulation displaces U.S. workers “in any way,” said Andrew Moriarty, deputy director of federal policy for the pro-immigrant group FWD.us. Moreover, the program “has been a lifeline” for those who received the permits, he told Bloomberg Law.
But U.S. workers haven’t had a fair chance to show the job competition they’re facing from immigrant spouses, their attorney, John Miano, told Bloomberg Law. The lower court kept adding new requirements just for the workers to be able to sue in the first place, he said.
The main issue runs deeper than job competition, Miano said.
Homeland Security claimed it has “absolute, unlimited authority” to issue work permits to any class of foreign national in the U.S., he said. If the court finds that the DHS has this kind of power, then “Congress no longer controls the immigration system at all,” Miano said.
Will There Be a Defense?
USCIS Director L. Francis Cissna agrees that there’s no authority for the regulation.
In an exclusive interview with Bloomberg Law in October, Cissna said he’s rescinding it because he doesn’t think Congress authorized the work permits.
So, then, how vigorously would the DHS defend the regulation in court?
A USCIS spokesman told Bloomberg Law that the agency doesn’t comment on pending litigation. A spokesman for the Justice Department, which is representing the DHS in court, said the DOJ is reviewing its options.
The appeals court has allowed Immigration Voice, an organization that advocates for immigrants stuck in the green card backlog, to intervene in the case. Also intervening are two Indian workers who have benefited from the H-4 work permit regulation: one who started a luxury home remodeling business, and another who launched a startup company that develops cancer immunotherapy strategies.
That would provide someone to argue on behalf of the regulation. But the more likely outcome is that DHS winds up kicking its proposed revocation of the program into gear and gets it released ahead of the briefing deadlines, Moriarty said. That will put the case back on hold.
That isn’t likely to be the end of litigation, however.
Immigration attorneys already have put the issue high on their list of potential upcoming lawsuits.
And in the time since the DHS first announced its intent to undo the H-4 work permits, various pro-immigrant and grassroots groups have been compiling evidence of the program’s benefits and the detriments if it’s rescinded. That evidence will be submitted to the DHS in response to the proposed rule, which could put the agency on shaky ground if it forges ahead, Moriarty said.
For Miano, it’s less about the program itself and more about executive authority.
If the DHS can take action on immigration without congressional authorization, “we have no immigration system,” he said. “It would be out of control at that point.”