Recent developments regarding an eight-year battle to end an Obama Administration program may interest TechServe Alliance members who utilize H-1B visa workers to bridge the technical talent gap.
In 2015, the Obama Administration finalized the Department of Homeland Security (DHS) 2015 H-4 Employment Authorization Document (EAD) Rule that gave certain H-1B visa spouses authority to work. Justifying the Rule,
“[t]he Secretary observed that H-1B workers often “must wait many years for employment-based immigrant visas to become available,” and that those delays “increase the disincentives for H-1B nonimmigrants to pursue LPR status and thus increase the difficulties that U.S. employers have in retaining highly educated and highly skilled nonimmigrant workers.” 80 Fed. Reg. at 10,284. The Secretary further observed that the “lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardships for the families of H-1B nonimmigrants” and that those “hardships may increase the longer these families remain in the United States.” Ibid” U.S. Government Brief, page 12.
On October 30, 2023, the U.S. Supreme Court denied a writ of certiorari in Save Jobs USA v. United States Department of Homeland Security. Filed in 2015 after the H-4 EAD Rule was finalized, a coalition of California tech workers challenged the Rule, arguing that the Immigration and Naturalization Act did not give DHS authority to take this action which, they argued, would severely impact American workers. In 2019, technology companies, such as Microsoft, and business associations, including the U.S. Chamber of Commerce, joined the case as amicus.
The case wound its way through the court system. A federal judge ruled that DHS can set rules and establish limits for visa holders. The judge also found that there was minimal impact on the U.S. workforce.
The Supreme Court’s October 30, 2023, inaction ends protracted efforts by the Trump Administration and private litigants to rescind or overturn the H-4 EAD Rule. With the court case pending, beginning in January 2017, the previous administration promised to rescind the Rule under the “Buy American, Hire American” Executive Order. The Trump Administration did not issue a final rule, pending the outcome of the litigation. On January 25, 2021, the Biden Administration immediately withdrew the Trump Rule.
This is the second time in the past month that the U.S. Supreme Court has declined to hear a case challenging DHS’s authority to enact regulations supporting employment-based immigration. In early October, the Supreme Court ended the litigation against the STEM OPT program.
