H-1B Spouse Work Permit Rule Survives D.C. Circuit Challenge (1)

US tech workers said program outside DHS authority Businesses have defended importance to economy A rule extending employment authorization to spouses of H-1B visa holders has withstood a federal appeals court challenge from a group representing US-born tech workers. The US Court of Appeals for the District of Columbia had already interpreted relevant provisions of the Immigration and Nationality Act to answer similar questions in favor of the Department of Homeland Security, a three-judge panel found Friday. “Because Save Jobs USA has not meaningfully distinguished this case from that binding precedent, we affirm the district court’s grant of summary judgment,” Judge Justin R. Walker wrote for the court. Save Jobs USA, which has been pursuing the case for close to a decade, argued that DHS exceeded its authority under the Immigration and Nationality Act by allowing unrestricted employment for spouses on H-4 dependent visas. The organization wanted the court to displace a previous ruling in Washington Alliance of Tech. Workers v. DHS on employment authorization for foreign graduates of US colleges because it didn’t address the major questions doctrine, Walker wrote. “But that’s not how stare decisis works,” he said. DHS and other proponents of the employment program said Congress has clearly given the executive branch the ability to grant work authorization to various classes of noncitizens. The US Supreme Court declined Save Jobs USA’s request last year to take up the case while it was still pending at the D.C. Circuit. That decision left in place a district court ruling affirming the legality of an Obama-era rule allowing roughly 90,000 H-1B spouses to work in the US. The Trump administration had planned to roll back the employment authorization program, but new regulations to do so were never finalized. Tech giants like Apple Inc. and Amazon.com Inc. as well as business groups like the US Chamber of Commerce have urged the courts to preserve the program, arguing that work eligibility for spouses is a critical factor in families’ decisions to move to or remain in the US. Chief Judge Sri Srinivasan and Judge Robert L. Wilkins joined the opinion. Chevron Fallout Some observers expected the Supreme Court’s dismantling of Chevron deference to lead to further challenges to work permits for H-4 visa holders and recent graduates on F-1 student visas. And Save Jobs argued in a brief last month that the ruling in Loper Bright Enterprises v. Raimondo bolstered the group’s case against employment authorization for H-1B spouses. But the court’s opinion Friday found in a footnote that “Washtech did not depend on Chevron,” but rather that the most straightforward reading of the INA authorized the work permits. The ruling Friday safeguards “the right of thousands of lawfully admitted immigrants, many with masters degrees or PhDs, to continue to work in the United States while their spouses are waiting to get permanent residency,” said Carl Goldfarb, a partner at Boies Schiller Flexner LLP and counsel for Immigration Voice. The group was an intervenor in the case in support of the DHS program offering employment authorization to those immigrant spouses. John Miano, counsel for Save Jobs, said the decision “confirms that the federal courts are intent on dismantling the protections for American workers in the immigration system.” Miano said the group is mulling whether to request review of the case by the full DC Circuit or appeal to the Supreme Court. The case is Save Jobs USA v. DHS, D.C. Cir., No. 23-05089, 8/2/24. (Updated with additional reporting and comments from attorneys for Save Jobs and Immigration Voice. ) For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.