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Report from the H4 EAD Oral Arguments in the US Court of Appeals for the DC Circuit

September 27, 2019
Today, the US Court of Appeals for the DC Circuit heard arguments for Save Jobs USA v. the Department of Homeland Security. Originating in the US District Court in DC, Judge Tatel (Clinton appointee) heard the case with Judge Griffin (Bush) and Senior Judge Silberman (Reagan). The case is a challenge to the H-4 EAD rule created by USCIS in 2015, which is currently in the process of being rescinded by a new rule at USCIS. Save Jobs USA represents three individuals who lost their jobs at a California based tech company to H-1B visa holders.
Appealing the denied motion for summary judgment from the District Court, Save Jobs presented arguments to the three-judge panel detailing harm to US workers because of competition created through the H-4 EAD (a component of their standing in Federal Court). References to the permanent residency process and job postings that mention seeking only H-4 EAD holders were presented to the Court along with anecdotal evidence from the District Court. The judges on the panel asked about the competitive impact of the H-1B visas while disseminating how that is further impacted by the Rule.
Of note were the remarks by Senior Judge Silberman, a former Undersecretary of Labor, on the labor certification process for H-1B recipients and the link to the H-4 EAD Rule (requiring an approved Immigrant Petition for Alien Worker). Questions were also raised about the applicability of the rule to petitioners, who lost their jobs before the H-4 EAD Rule was put in place, and the timeline for the DHS to strike and promulgate a new rule.