The fate of H-4 employment authorization hangs in the balance as 2019 comes to a close. It’s been nearly a year since the Department of Homeland Security sent the Office of Management and Budget a proposed rule that would rescind a 2015 regulation extending certain H-4 visa holders—the spouses of H-1B professional workers—the opportunity to seek U.S. employment.
The DHS has offered little explanation as to why the rule remains unpublished, but recently affirmed its commitment to proceed with rescission as early as spring 2020, albeit referring to that timeframe as “aspirational.”
In the meantime, H-4 employment authorization faces a second, more pressing threat. On Nov. 8, in Save Jobs USA v. DHS, the U.S. Court of Appeals for the District of Columbia Circuit held that a group of American IT workers has standing to challenge the H-4 regulation.
The court remanded the case to the district court to address the merits of Save Jobs’ claim—that the DHS lacks authority to extend employment authorization to H-4 spouses absent explicit congressional direction.
The fundamental issue for the court is whether the Immigration and Nationality Act (INA or the Act) delegates to the DHS broad authority to establish classes of foreign nationals eligible to work in the United States or, as the plaintiffs maintain, limits such authority to those instances where Congress specifically instructs it to do so.
Resolving this tension will be essential for the district court in reviewing the merits of the plaintiff’s claim. Federal courts generally defer to agency decision-making where the relevant statute is unclear and the agency’s interpretation of the law is reasonable.
Here, the court will likely analyze whether the INA unambiguously limits the DHS’s authority to extend work authorization only to classes of foreign nationals the statute explicitly designates for employment.
If the court finds the INA leaves room for the agency to exercise discretion and grant employment authorization absent an explicit statutory mandate and as part of its broad powers to execute the immigration laws, then the court may also find that the benefit afforded to H-4 spouses is reasonable, as explained and justified by the DHS in its commentary to the final rule.
Political Context Plays a Role
The political context here is important. The regulation permitting H-4 visa holders to work is a product of the Obama administration. The district court initially dismissed Save Jobs’ complaint for lack of standing in September 2016, after which Save Jobs appealed.
In April 2017, shortly after President Donald Trump took office, the DHS persuaded the appeals court to hold the case in abeyance since the agency intended to rescind the rule and moot the need for judicial involvement. More than two-and-a-half years later, a proposed rule has been drafted but still not published, as stated above.
Notwithstanding the Trump administration’s continued promise of a rule, in its Nov. 8 opinion remanding the case for a decision on the merits, the court of appeals concluded, “Given that the merits here involve complex questions about the scope of the Department’s authority … and recognizing the substantial possibility this case will be mooted by the Department’s promised rescission of the rule, we think it best to remand to give the district court an opportunity to thoroughly assess and finally determine the merits in the first instance.”
Trump’s DHS and the plaintiffs in Save Jobs appear to want the same thing—the end of H-4 employment authorization. Instead of asking the appeals court to hold the case in abeyance, it is curious that the administration did not simply advise the court that it no longer wished to defend the lawsuit and pave the way for the plaintiff’s successful appeal.
Now that the case has been remanded to the district court, it remains unclear if the administration will defend the lawsuit or remove itself from the proceedings to increase the likelihood that the plaintiffs will succeed on the merits.
While the DHS may not approve of H-4 employment authorization, the Trump administration may not wish to encourage judicial oversight of executive authority. In this context, it makes sense that the DHS would have preferred to dismantle H-4 employment authorization by its own hand rather than have a federal court take, as it did, an expansive view of who has standing to challenge executive action.
Now that the district court will resolve the plaintiff’s substantive claims, the administration may again consider mooting judicial meddling by eliminating the rule giving rise to the plaintiff’s grievances.
Where’s the Rule?
This inevitably leads to a fundamental question: Why hasn’t the proposed rule rescinding H-4 employment authorization been published? The administration has not released a preview of the draft rule and has been surprisingly mum as to the reasons for the delay, merely citing an inter-agency process.
One plausible explanation is pressure from the business community, which was very supportive of the H-4 rule when it was promulgated in 2015 and which may be fighting for its survival behind the scenes.
H-1B workers are in large part IT professionals. The unemployment rate for college-educated professionals with STEM degrees is extraordinarily low. In promulgating the final rule, the DHS clarified that among the important rationales for extending employment authorization to H-4 spouses, many of whom are themselves IT professionals, is to incentivize H-1B workers to remain in the United States during a very long U.S. residency process.
While on the one hand the Trump administration may want to appease a subset of American IT workers who resent competing for jobs with foreign-born workers, the administration also does not want to appear to hamstring American competitiveness or lose support from the business community by jeopardizing a critical component of their IT workforces.
It thus may be a long time before we see a published rule rescinding H-4 employment authorization. Instead, the DHS may allow the courts to resolve this issue. The agency must, however, decide whether and to what extent it wants to weigh in on the ensuing battle.
U.S. employers with H-1B or H-4 professionals in their workforces should stay abreast of developments in the Save Jobs case as well as any movement from the DHS on the regulatory front. If H-4 employment authorization is stripped, many thousands of H-1B households will lose income generated by working spouses.
If the DHS’s analysis in the final rule is accurate—that extending H-4 employment authorization incentivizes H-1B workers to remain in the United States and build careers here notwithstanding the protracted U.S. residency process—then businesses may be well-served to identify potentially impacted staff and, as appropriate, consider other incentives for career longevity in the United States while also planning for attrition borne by economic circumstance.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Andrew Greenfield is the managing partner of Fragomen’s Washington, D.C., office and a member of the firm’s executive committee. He advises U.S. and global organizations across industries on U.S. immigration and nationality law, regulation, policy and compliance.