Save Jobs USA urged a D.C. federal court Tuesday to keep alive their challenge to a new U.S. Department of Homeland Security H-4 visa rule that allows certain spouses of high-skilled immigrants to get work authorization, saying the department wrongly argued that they didn’t properly plead an injury.
Save Jobs USA, a group of former Southern California Edison tech workers who say they were replaced by foreign nationals on H-1B visas, filed an opposition to the government’s motion to have the case tossed, arguing that the group has standing to challenge the H-4 visa rule because the rule harmed its members and that DHS was wrong to argue otherwise.
The opposition, filed on the day the DHS rule took effect, also contended that dismissal at this stage would be premature.
“The fundamental problem DHS faces making a lack of standing argument is that the H-4 rule creates injury so widespread that nearly every American worker has been injured by it and thus possesses standing to challenge it,” the opposition said. “The court should reject DHS’s argument.”
Under the regulation, certain H-4 visa holders who are married to foreign workers on H-1B visas and have begun the process of becoming legal permanent residents themselves can apply for their own temporary work permits.
The group launched its suit on April 23, a month before the H-4 employment rule was slated to go into effect. Save Jobs argues that DHS lacks statutory authority to allow H-4 visa holders to work and that the rule’s purpose is simply to increase foreign labor by drawing more people to the H-1B program. The group also contends that the rule is arbitrary and capricious since the law restricts H-4 visas to residency only.
The group says the H-4 work rule hurts its members by increasing the number of “economic competitors” and depriving them of protections from foreign labor.
On Sunday, U.S. District Judge Tanya S. Chutkan denied Save Jobs’ bid for a preliminary injunction, saying the group failed to show it would suffer irreparable harm without the order. The rule went into effect Tuesday, allowing certain H-4 visa holders to begin applying for work authorization.
Earlier this month, DHS strongly urged Judge Chutkan to dismiss the suit, arguing that Save Jobs has failed to show that its members directly compete with any potential beneficiaries of the new rule and has fallen far short of showing how the members have been hurt for standing purposes.
But Save Jobs’ opposition Tuesday listed several injuries it suffered as a result of the H-4 rule, including that the rule deprives it of statutory protections from foreign labor, creates increased competition from both H-1B and H-4 workers and confers benefits on Save Jobs’ H-1B competitors.
DHS’ motion to dismiss has “once again employed its repeatedly failed argument that a plaintiff who alleges competitive standing injury must prove that she or he applied for a job and didn’t get the job but for an alien worker,” the group said.
Further, Save Jobs said it properly stated a viable claim that DHS acted beyond its authority in promulgating the H-4 rule because it has no authority to authorize H-4 visa holders to work.
The group also reiterated its contention that DHS acted arbitrarily and capriciously in enacting the rule, in part by overturning a nearly five-decade-old policy of Congress.
“Unlike the work visas in the H category, the H-4 visa contains no protections for American workers,” it said. “By allowing aliens to work on an H-4 visa, instead of a guest worker visa, DHS circumvents the protections for domestic labor in the immigration system.”
Ultimately, Save Jobs said the case boils down to whether, under the Immigration and Nationality Act, Congress defines the classes of noncitizens allowed to work in the U.S. and DHS has broad authority to determine which individuals within those classes may be admitted, or whether DHS and Congress share “dual authority” to define those classes.
“The outcome has major implications because, should the court hold that DHS has ‘dual authority’ to define classes of aliens allowed to work in the U.S., the entire system of admitting nonimmigrant labor into the United States will be upended,” the opposition said.
