U.S. Court Removes Suit Against H-4 Visa Authorization from AbeyanceTop Stories

December 19, 2018 17:26
U.S. Court Removes Suit Against H-4 Visa Authorization from Abeyance

(Image source from: BW Businessworld)

The United States court has removed a lawsuit challenging work authorization to H-4 visa holders from abeyance after the Trump administration delayed a formal notification over the issue that can impact spouses of H-1B visa holders that include Indians.

The Barack Obama administration in 2015 permitted H4 visa-holders - chiefly spouses of the H-1B visa-holders - to be gainfully employed in the U.S.

The group 'Save Jobs USA' took the issue to the appeals court after a district court upheld the Obama administration's decision.

The H-1B visa is a non-immigrant visa that allows U.S. companies to employ foreign workers in specialty occupations. H-4 visas are issued to the spouses of H-1B visa holders, who are significantly high-skilled professionals from India in large numbers.

The U.S. Court of Appeals, District of Columbia, in its order on December 17 ordered that the motion to plan briefing and oral argument be acknowledged and this case challenging work authorization to of H-4 visa holders "be removed from abeyance."

At least three times, the Trump administration told the court that it has decided to revoke the Obama-era decision and a formal notification would be issued shortly.

While the notification on the matter is thus far to be issued, the Department of Homeland Security (DHS) in its annual agenda has said that it is determined to revoke work authorization to certain categories of H-4 visa holders. It had said that the notification would be issued this month.

In September, Save Jobs USA which had filed the lawsuit urged the court to remove the abeyance and move forward with the case. The case is before a three-member bench, which includes Indian-American Sree Srinivasan.

In its submission, Save Jobs USA argued that even though the case has been delayed, no proposed rule has been submitted to the Office of Management of Budget.

"Justice delayed is justice denied," Save Jobs USA said and ruled that the longer the case remains in abeyance, the longer American workers will "suffer injury from the presence of foreign competitors in their job market".

As per the latest court order, the case is no longer held in abeyance and the new briefs must be submitted by Save Jobs USA by January 16, 2019. The Trump administration has time till February 22, 2019, to file its response.

In a related development, the court also granted permission to 'Immigration Voice' to intervene in the case.

Immigration Voice is a nonprofit organization working to relieve problems faced by lawful high-skilled foreign workers in the U.S.

"This is a major development because the Court of Appeals does not typically allow a party to intervene at the appellate level and it is significant that the court granted our motion to intervene," Immigration Voice said Tuesday.

"That indicates the court has some concern (and with good reasons) that our interests will not be adequately represented by the DHS/Government," it said.

"Since the court has also granted our motion to intervene, we get to file a brief in opposition to the new brief that Save Jobs USA will file under the soon to be issued briefing schedule," it argued.

Given that the DHS has hitherto declared its aim to get rid of H4-EAD programme, the court's acceptance of its motion to step in gives them a fighting chance to make a representation on behalf of its members for whom H4-EAD is so important, Immigration Voice said.

Spouses of H-1B visa holders are not allowed to work with just an H-4 visa. There is, however, an option to get an Employment Authorization Document (EAD) pass which lets them work with an H-4 visa.

"For that outcome, the intervention in the lawsuit is the only thing that is keeping H4-EAD programme alive and it stands between 50,000+ families from losing their right to provide for their families," Immigration Voice said.

According to an official, the U.S. Citizenship and Immigration Services (USCIS) continues to review all employment-based visa programs, including H-4 EADs.

"No decision about the Obama administration regulation granting work authorization to certain H-4 spouses is final until the rule-making process is completed," the official told PTI.

-Sowmya Sangam

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H-4 visa  H 1B visa  United States