Last Friday, a DC Circuit Court ruling upheld the authority of the Department of Homeland Security (DHS) to grant work authorization to spouses of certain H-1B workers. This ruling is a win for highly skilled workers, their US employers, and their families as it is a key benefit to attracting and retaining top talent from across the globe. It was also an important setback to organizations seeking to bar USCIS from granting many types of work authorization, from student Optional Practical Training to employment authorization for green card applicants.
As background, an H-1B employee may be authorized to work in the United States for up to six years, but their accompanying spouses are generally not allowed to work. An H-1B employee who is sponsored for permanent residency (a.k.a. a green card) may extend their H-1B visa status beyond the six years, essentially indefinitely until the green card is issued. Due to quotas and resulting backlogs in immigrant visa availability, it can take years or even decades to receive a green card, which poses financial difficulties to H-1B workers and their families as they would be forced to rely on a single income to support their families.
In 2015, DHS issued a rule allowing spouses of H-1B workers to apply for an employment authorization document once the H-1B worker’s green card sponsorship process reaches a certain milestone.
The 2015 rule was challenged by Save Jobs USA, an organization of IT workers who claim that employment authorization for spouses of foreign workers made it harder for them to find jobs in their field. Save Jobs USA argued that DHS did not have the authority to issue the rule. DHS defended the rule and argued that its authority to issue such rules lies in certain provisions of the Immigration & Nationality Act (INA). The District Court dismissed the lawsuit and Save Jobs USA appealed to the DC Circuit Court.
DHS’s authority under the same provisions of the INA was previously challenged in a case relating to DHS’s decision to grant optional practical training (OPT) to foreign students who completed degrees in the United States. In this prior case, brought by the Washington Alliance of Technology Workers (Washtech), the DC Circuit Court decided that Congress delegated broad authority to DHS to establish the terms and conditions under which nonimmgrants may remain in the United States, and that these terms and conditions could include the granting of work authorization by regulation. The DC Circuit Court upheld the dismissal of the Save Jobs USA suit and followed its reasoning from the Washtech case.
It is important to note that this ruling comes after the U.S. Supreme Court overruled the long-standing doctrine of “Chevron deference” which required courts to defer to federal agencies in their interpretation of laws they enforce if the laws are ambiguous. The elimination of “Chevron deference” raises concerns about the impact on the operations of federal agencies as they will no longer have the final say in the interpretation of the laws they enforce. The fact that the DC Circuit Court upheld DHS authority, in this case, is a welcome development in the aftermath of the “Chevron deference” elimination, however, the DC Circuit Court noted that its prior decision in 2022 was not rooted in Chevron deference as the INA clearly supports DHS’s authority to issue the type of rule relating to employment authorization for nonimmigrants as was challenged in 2022 and in the Save USA Jobs cases.
We anticipate that organizations seeking greater limits on legal immigration will continue to bring challenges to DHS regulations that grant work authorization. The challenge to H-4 work authorization relied on the same types of legal arguments that states have used to challenge the Obama administration’s DACA program, in addition to the earlier DC circuit challenge to the STEM OPT program. In the most recent term, the Supreme Court expanded such organizations’ ability to bring challenges to longstanding regulations, so long as the organizations can successfully allege a current harm to their members. We expect these challenges to continue, as these organizations hope to obtain a Supreme Court ruling that limits the broad authority over noncitizen work authorization granted in the INA to the Department of Homeland Security. While the DC Circuit’s ruling is an important victory, we expect efforts to undermine the legal authority of DHS in the courts will continue.
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