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Immigration Law

Lawsuit Challenges EADs for H-4 Spouses

"A group representing former Southern California Edison Co. computer workers launched a suit in Washington, D.C., federal court Thursday challenging a U.S. Department of Homeland Security regulation that authorizes certain H-1B dependent spouses who possess H-4 visas to work, saying the rule robs them of their domestic labor protections.

Save Jobs USA filed the declaratory suit seeking to vacate the rule, which was promulgated by DHS in February and is slated to take effect on May 26. The agency purportedly claimed the regulation would add as many as 179,600 new foreign workers in the first year and 55,000 annually in subsequent years.

In its complaint, SAVE Jobs USA contended that the agency acted arbitrarily and capriciously by authorizing foreigners who possess an H-4 visa to work and is hurting American workers by creating greater competition with nonimmigrants.

“The H-4 rule is in excess of DHS authority and directly contradicts several provisions of the Immigration and Nationality Act,” the complaint said. “By authorizing H-4 visa holders to work, DHS injures Save Job USA members by depriving them of their statutory protections.”

Save Jobs USA, which brought its suit under the Administrative Procedure Act, said the agency rule at issue extends employment authorization to aliens possessing an H-4 visa who are married to H-1B holders that are beneficiaries of an approved immigrant petition for alien worker, or have been granted H-1B status extending beyond the normal 6-year term.

Among its arguments, Save Jobs USA said DHS ignored labor protections normally afforded to American workers, arbitrarily reversed Congress' longstanding policy of not allowing H-4 aliens to work in the country, and failed to properly gauge the effect of more foreign workers on domestic workers.

“There is no statutory authorization for an alien possessing an H-4 visa to work,” the complaint said.

Save Jobs USA noted that at least three of its members had standing to bring the instant action on their own, saying each of the three long time SCE workers were replaced after their information technology jobs were outsourced to Tata Consultancy Services Ltd. and Infosys Ltd., two of the largest users of H-1B visas. All three were required to train their replacements.

Ultimately, the group said its members were injured by the rule because they will be forced to compete with H-1B and H-4 guest workers for jobs, pointing directly to DHS' statements that the H-4 rule will increase the number of H-1B participants to bolster its argument.

“Corporate America is already seizing upon the opportunity created by DHS for more cheap labor,” the complaint said. “Even before going into effect, the H-4 Rule has already created a market demand for aliens who possess an H-4 visa [and] these H-4 aliens are already directly competing with Save Jobs USA members.”

Save Jobs USA is an unincorporated group of former Southern California Edison computer workers that were replaced by foreign workers imported on H-1B guest worker visas. The workers formed Save Jobs USA “to address the problems American workers face from foreign labor entering the U.S. job market through visa programs,” according to their complaint.

Save Jobs USA is represented by John Michael Miano as well as Dale Wilcox and Michael Hethmon of the Immigration Reform Law Institute.

Counsel information for the government was not immediately available Friday.

The case is Save Jobs USA v. U.S. Department of Homeland Security, case number 1:15-cv-00615, in the U.S. District Court for the District of Columbia." - Law360, Apr. 24, 2015.