Review Of Trump Administration Shifting Position(s) On H-4 EAD Rule

Jackson Lewis P.C.

It has been five years since Save Jobs USA, a group of technology workers who claim to have been displaced by foreign nationals with H-4 EADs challenged the Obama Administration’s authority to enact the H-4 EAD Rule. In the years since that filing, the case has gone back and forth between the D.C. District Court and the U.S. Court of Appeals for the D.C. Circuit. The Trump Administration (which did not really want to defend the rule) requested more than six “pauses” in the litigation based on its assertions (starting in 2017) that a new rule rescinding H-4 EADs would soon be published. That new rule has been stuck in the Office of Budget Management (OMB) review process for more than a year, but it remains on the DHS Regulatory Agenda with an expected spring 2020 publication date.

So, DHS’s opposition to a motion for an injunction that would have stopped the agency from issuing or renewing H-4 EADs appeared to be an about face. It is possible OMB is telling the Administration the Rule does not make sense from an economic standpoint – even during high unemployment and the Administration’s other ongoing efforts to limit immigration. But the Trump Administration may have something else in mind.

In its brief opposing the injunction, DHS argued the elements for granting an injunction had not been met. The brief stated:

  • There is no showing of irreparable harm because Save Jobs’ supporting affidavit says nothing about the present job market or threat of impending economic harm;
  • There is no showing of a likelihood of success on the merits because the court had indicated it “’would likely conclude that DHS’s interpretation of its authority under the INA is not unreasonable, and the H-4 Rule is a valid exercise of this rulemaking authority.’”
  • The balance of harms and public interest prongs are not met because “[i]njunctions to the enforcement of such regulations ‘severely undermine . . . USCIS’s authority to make regulatory determination about the issuance of [employment-based] visas’”; and
  • There is a negative consequence where the court is being asked to “substitute its judgment for that of the appropriate agency.”

In order to enact more restrictions on immigration and work authorization, the Administration may want to ultimately argue that:

  • The H-4 Rule is a valid exercise of rulemaking authority, because it wants its new rule (rescinding H-4 EADs) to be a valid exercise of rulemaking authority;
  • USCIS has the authority to make regulatory determinations about visas;
  • Courts should not substitute their judgment for that of the agency; and
  • In these times of COVID-19, the current economic picture must be kept in view.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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