Association Could Challenge Visa Rule

 

By John P. Keil February 4, 2020
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utility worker

​An organization representing California utility workers could challenge a U.S. Department of Homeland Security rule permitting spouses of H-1B visa holders awaiting permanent residency to apply for authorization to work in the U.S., the U.S. Circuit Court of Appeals for the District of Columbia decided.

The Immigration and Nationality Act authorizes the use of H-1B visas to permit highly skilled, noncitizen workers to find employment in their specialty occupation in the U.S. The act also authorizes the use of H-4 visas, which ordinarily do not grant work authorization, for the spouses of H-1B workers.

An H-1B visa allows its holder to reside and work in the U.S. only temporarily, but visa holders can seek permanent residency through an employer-sponsored immigration process. The Department of Homeland Security issued a rule permitting holders of H-4 visas to obtain work authorization while a spouse's application for permanent residency is pending.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Save Jobs, the California utility workers association, filed suit challenging this rule, arguing that the agency exceeded its statutory authority in issuing it and that the rule itself was arbitrary.

The agency moved to dismiss the lawsuit. The district court granted the motion, finding that the plaintiff failed to show that its members were harmed by the rule.

The D.C. Circuit reversed, noting that the challenged rule arguably would cause its members to face increased competition for jobs. Absent the rule, Save Jobs maintained, at least some H-1B visa holders awaiting permanent residence would leave the United States—exiting the labor pool—because their spouses could not work.

"By authorizing H-4 visa holders to seek employment, SAVE Jobs continues, the rule removes a key obstacle to H-1B visa holders remaining in the United States throughout the immigration process, meaning that more H-1B visa holders will stay and compete with Save Jobs' members than otherwise would have," the appeals court stated.

The D.C. Circuit decided that the plaintiff could sue because the rule encouraged H-1B visa holders to remain in the U.S. labor market and compete for jobs sought by the plaintiff's members. The plaintiff provided affidavits from its members attesting to their competition with holders of H-1B visas for technology jobs, providing evidence that they were directly affected by the rule.

The D.C. Circuit sent the case back to the district court to determine whether the rule was properly issued.

Save Jobs v. U.S. Dep't of Homeland Sec., D.C. Cir., No. 16-5287 (Nov. 8, 2019).

Professional Pointer: This case highlights how a rule's effect on competition, whether among employees or employers, may let an organization challenge government regulations.

John P. Keil is an attorney with Collazo & Keil LLP, the Worklaw® Network member firm in New York City.

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