By Elizabeth Jacobs on August 13, 2024
On Friday, August 2, 2024, the U.S. Court of Appeals for the District of Columbia Circuit upheld a U.S. Department of Homeland Security (DHS) regulation that grants work authorization eligibility to certain H-4 nonimmigrant visa holders in a lawsuit called Save Jobs USA v. DHS. H-4 visa holders are dependent spouses or unmarried children (under the age of 21) of H-1B nonimmigrant visa holders. The INA does not specifically provide work authorization eligibility for these derivative nonimmigrants. Rather, DHS, through the issuance of a regulation, granted certain H-4 dependent spouses work authorization eligibility. Saves Job USA challenged the rule, arguing that DHS exceeded its authority under the Immigration and Nationality Act (INA).
The H-1B nonimmigrant visa program provides visas for aliens wishing to perform services in specialty occupations, like computer programming (as well as services of exceptional merit and ability relating to a Department of Defense cooperative research and development project, or services as fashion models of distinguished merit). Congress capped H-1B visa issuances at 85,000 annually (including 20,000 visas that are reserved for workers with master’s degrees or higher), but allows H-1B workers who are petitioned for or employed at an institution of higher education or affiliated nonprofit entities, nonprofit research organizations, or government research organizations to avoid the annual cap. H-1B visas are issued for periods of up to three years, but may be renewed for an additional three years (six years total).
H-4 visas are issued for the same periods of stay as the principal spouse or parent (generally, up to six years) and are not counted for the purpose of the annual H-1B visa cap. Under the DHS regulation at 8 C.F.R. § 214.2(h)(9)(iv), H-4 nonimmigrant spouses whose spouse is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers (i.e., eligible to receive a green card but still waiting in the queue) or has been granted H-1B status under section 106(a)( and (b) of American Competitiveness in the Twenty first Century Act of 2000 (Public Law 106-313), as amended by the 21st Century Department of Justice Appropriations Authorization Act (Public Law 107-273), may be eligible to receive work authorization.
The plaintiffs argued that DHS does not have the authority to issue work authorization in cases where Congress has not specifically provided for such eligibility.
The Save Jobs USA plaintiffs filed the challenge to the H-4 rule shortly after it was issued by the Obama administration in 2015, arguing in part that DHS does not have the authority to issue work authorization in cases where Congress has not specifically provided for such eligibility. The group argued that DHS lacked the authority to allow H-4 spouses to work without at least restrictions regarding occupation, given the tight restrictions the INA imposes on high-skill employment.
For example, total H-1B visa issuances are limited by the annual cap. Additionally, H-1B applicants must demonstrate that they have obtained at least a bachelor’s degree, and the position must qualify as a “specialty occupation”, among other eligibility requirements. A petitioning employer must also obtain a certification of a Labor Condition Application (LCA) from the Department of Labor, which requires the petitioning employer attest that the employer will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working; that the employer will provide working conditions that will not adversely affect other employed workers; notice of the filing of the LCA has been posted or given to the union bargaining representative; and that at the time of the LCA, there is no strike or lockout at the place of employment. H-4 visa holders who receive employment authorization, on the other hand, may take any position for which they are hired, in any industry, without requiring employers to attest or otherwise demonstrate that the employment of such workers will not adversely impact current employees.
Therefore, the Save Jobs USA plaintiffs argued that without limitations in place, H-4 visa holders could take job opportunities away from American tech workers — of whom the H-1B limitations were specifically enacted to protect. A 2018 Congressional Research Service (CRS) report noted that, as of the end of 2017, USCIS had approved 126,853 applications for employment authorization for H-4 nonimmigrant visa holders.
The problem with this challenge, however, is that the same federal appeals court already issued a ruling on a nearly identical legal issue in a case called Washington Alliance of Technology Workers v. DHS (“Washtech”). This case challenged the validity of F-1 (student) nonimmigrant employment under DHS’s STEM Optional Practical Training (OPT) rules.
OPT allows nonimmigrants who were admitted to the United States under F-1 (student) nonimmigrant visas to work in the United States after they complete their course of study (i.e., after they are no longer students, and therefore, are technically violating the statutory conditions of their visa, which requires F-1 visa holders to be enrolled as a full-time student at an accredited academic institution or in a language training program). DHS rules, however, allow students in STEM fields to work an additional 24 months beyond the usual 12-month OPT period — for a total of 36 months (three years) after graduation, the same period of stay authorized for H-1B nonimmigrant visa holders.
The OPT program, therefore, allows employers to avoid the annual H-1B cap to obtain foreign workers. As a result of DHS’s rulemaking, OPT is now the largest guestworker program in the United States. The Washtech plaintiffs challenged under the Administrative Procedure Act DHS’s ability to create such a massive guestworker program without express authorization or a directive from Congress.
The court in Washtech concluded that DHS’s STEM OPT rule is a valid exercise of DHS’s authority under INA § 214(a)(1), which states in pertinent part that, “admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe”. The court stipulated that such conditions must be reasonable given the statutory purpose of the immigration benefit, but after analyzing the historical treatment of foreign students in the United States, concluded that it was a reasonable exercise of the section 214(a)(1) authority.
To make this analysis, the court rejected the Washtech plaintiffs’ argument that the OPT rule is in conflict with the conditions set by Congress in statute: that F-1 visa holders must be enrolled full-time at an accredited academic institution or language training program. The court concluded that these were merely entry conditions and did not apply for the alien’s entire duration of stay — and notably cited no judicial opinions supporting of this interpretation.
Moreover, the court was persuaded by DHS’s claim that the wording of section 274a(h)(3) of the INA, which provides the definition of “unauthorized alien”, is evidence of such authority. This provision states that “the term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” (Emphasis added.) The court, here, read this provision as congressional acknowledgement that the attorney general (and now also the secretary of Homeland Security) has the authority to issue work authorization in contexts other than explicit statutory authorization.
In October 2023, the U.S. Supreme Court denied the Washtechplaintiffs’ petition for writ of certiorari (a request for review by the Court). As a result, the lower court’s decision upholding the program was left in place.
The Save Jobs USA plaintiffs, in their appeal of the district court’s ruling to the court of appeals, asked the court to reject the Washtech ruling because it did not address the “major questions doctrine”. This doctrine is a statutory interpretation tool, meant to “help courts figure out what a statute means” and holds that courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance” (West Viriginia v. EPA, 597 U.S. 697, 716 (2022)).
The appeals court, however, ruled that stare decisis requires the court to adhere to the Washtech decision because Washtechwas decided after West Viriginia. The court explained, “[I]f stare decisis means anything, a future court lacks the authority to say a previous court was wrong about how it resolved the actual legal issue before it.” (Citing Gibbons v. Gibbs, 99 F.4th 211, 215 (4th Cir. 2024).)
If the Supreme Court refuses to step in on this matter, only congressional action or a regulatory change can rein in the executive branch’s ability to issue work authorization to categories of nonimmigrants that are not authorized by statute to work in the United States. Given the Biden-Harris administration’s commitment to expanding work authorization opportunities across the immigration system, it is safe to conclude that a potential Harris-Walz administration will not serve as a catalyst of change for this issue.
https://cis.org/Jacobs/Court-Rejects-Challenge-Work-Permits-H1B-Spouses
