Court dismisses lawsuit challenging H-4 work authorization

19 Oct 16

UNITED STATES

A federal court has dismissed a lawsuit brought by tech workers who sought to block a regulation introduced last year that allows spouses of certain H-1B workers to obtain authorization to work in the U.S.

U.S. District Court Judge Tanya S. Chutkan found that the tech workers lacked standing to bring the lawsuit because they failed to prove they have been injured by the rule.

Key points:

  • The dismissal of the legal challenge means that the H-4 regulation currently remains in effect.
  • The rule allows H-4 visa holders to apply for an Employment Authorization Document (EAD) if their H-1B spouse has an approved I-140 petition or has been granted an extension of stay beyond the initial six-year duration of an H-1B visa.

Background: The lawsuit, filed in April 2015 by tech workers group Save Jobs USA, claimed that the Department of Homeland Security lacked authority to promulgate the regulation and that the regulation unfairly increased foreign competition for American tech jobs.

But the court said that the group failed to show that H-4 workers would harm their jobs. “Here, there is simply no evidence that the H-4 Rule was targeted at the tech field, or that even one H-4 visa holder has sought or will seek a tech job in competition with Plaintiff’s members,” the court said. “Plaintiff’s argument, without evidence, is bare speculation, and the injury it contemplates is insufficient to establish standing.”

The court’s ruling can be viewed here.

BAL Analysis: Although the tech workers have appealed this ruling to the U.S. Court of Appeals for the District of Columbia Circuit, the H-4 rule remains in place and spouses of H-1B workers who qualify may continue to apply for employment authorization.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@balglobal.com.

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