Feds seek new delay in suit over spouses’ right to work in U.S.
Spouses of H-1B visa holders remained in flux Wednesday as the Department of Homeland Security asked again for more time to consider a lawsuit challenging these foreigners’ right to work in the U.S.
The delay is the latest development in a case that has been pending since 2015, when President Barack Obama created a work authorization for these spouses who come to the U.S. on an H-4 visa. Before its creation — which the plaintiffs in the case are challenging — H-4 visa holders were not allowed to hold a job or get issued a Social Security number.
Obama created the work permit in 2015 for H-4 visa holders whose spouses were in the process of getting a green card. Before they were allowed to work, some of the visa holders — most of them women — went back to school, volunteered or raised children. Others found themselves stuck at home with little to do while their spouses went to work.
“I was going crazy,” Karishma Chawla, an H-4 visa holder, recently told The Chronicle of the seven years she spent without a work authorization.
The lawsuit, filed in April 2015 by Save Jobs USA, a group of technology workers who say they lost their jobs to H-1B workers, argues that allowing these spouses to work threatens American jobs by increasing the pool of potential workers.
On Wednesday, the Department of Homeland Security asked the U.S. District Court in the District of Columbia for an additional 180 days to reconsider the work permits. If granted, the case will be reconsidered Dec. 31.
The Trump administration has been asking for more time to consider the case since February. But the latest motion
“If this rule is lawful, then the president can undermine every single protection for American workers in the immigration system.” John Miano, attorney for plaintiff Save Jobs USA
cites President Trump’s “Buy American and Hire American” executive order, which orders reviews on existing immigration policies in the interest of protecting American jobs.
“Accordingly, DHS had to refocus its review of the H-4 Rule to ensure that it meets the newly announced priorities,” according to the motion.
This means that the administration is considering making changes to the rule, which could range from changing eligibility requirements to something more dramatic, such as rescinding the rule.
The department plans to announce its “intentions” on the rule by the end of the year, according to the motion.
The lawsuit challenges the Department of Homeland Security’s ability to grant work permits to immigrants through a rule rather than congressional approval, an argument similar to the one the administration used in its decision to rescind Deferred Action for Childhood Arrivals.
“The problem is that this rule is based on the premise that the president has unlimited authority,” said John Miano, an attorney for Save Jobs USA. “If this rule is lawful, then the president can undermine every single protection for American workers in the immigration system.”
Based on his reading of the motion, Miano said it seems like the administration is promising to withdraw the rule. But he said he would like to see it be taken a step further: “We would prefer to have the rule declared unlawful.”
About 100,000 foreigners come into the U.S. on H-4 visas every year, a number that has been steadily increasing since 2012, according to the U.S. Department of State. Since October, the beginning of the government fiscal year, about 36,000 spouses have been approved for work authorization — a tiny fraction of the number of foreigners entering the U.S. workforce every year.
Despite the lawsuit, spouses are still able to apply for the work authorization. Even if the Trump administration decides to unravel the rule, such an action would require a lengthy notice-and-comment period, a requirement that has stymied other efforts by the Trump administration to swiftly revoke Obama-era rules.
By citing the “Buy American Hire American” executive order, the administration suggests that it is looking to scale back any immigration rule that affects American workers, said Greg Siskind, an immigration attorney.
But, he added, “They haven’t settled exactly on what they are going to do.”