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U.S. Tech Workers Get D.C. Cir. Win in H-1B Spouse Work Case (1)

Nov. 8, 2019, 4:44 PMUpdated: Nov. 8, 2019, 7:46 PM

A group of U.S.-born tech workers faces increased job competition from H-1B visa holders as a result of a regulation giving work permits to their spouses, the U.S. Court of Appeals for the District of Columbia Circuit ruled Nov. 8.

But it will be up to a lower court to decide the merits of the workers’ lawsuit challenging an Obama-era regulation as outside the Department of Homeland Security’s authority. An ultimate finding that the regulation is unlawful will mean that some 100,000 mostly Indian women who’ve been allowed to work in the U.S. since 2015 will have to leave the labor force.

The decision is a victory for Save Jobs USA, which was formed by a group of tech workers who were laid off from their jobs at Southern California Edison and replaced with workers on H-1B specialty occupation visas. They say they face additional competition for tech jobs from H-1B workers because of the regulation, which was designed to prevent foreign workers from leaving the country.

That layoff, coupled with a similar one a few months later at Walt Disney World, garnered the attention of then-presidential candidate Donald Trump. Since taking office, Trump has heavily scrutinized the H-1B program in an effort to prevent the visa from being used to displace U.S. workers.

“The big picture” is the ruling that an administrative program increases job competition for American workers, said Save Jobs USA’s attorney John Miano of the Immigration Reform Law Institute. U.S. workers often don’t get these types of decisions from courts because most lawsuits against government regulations are brought by big businesses, he said.

The lack of a decision on the merits is a “disappointment,” although not unexpected, Miano said. Whether the DHS can continue to issue regulations that provide work permits to different groups of foreign nationals is “a big problem that has a lot of implications,” he said. The courts have “got to eventually decide this.”

A spokesman for U.S. Citizenship and Immigration Services, the DHS agency that administers the work permit program, said the USCIS is reviewing the decision. He declined further comment.

Case Delayed

The Trump administration, which inherited the lawsuit from the Obama administration, told the D.C. Circuit in early 2017 that it was working on a regulation to undo the work permit program. Although it initially put the case on hold, the appeals court restarted it in December 2018 after the regulation failed to materialize.

A proposed regulation has been under review with the White House’s Office of Management and Budget since February 2019. The DHS recently told the court that it’s not expected to be released until at least spring of next year.

In its Nov. 8 ruling, the D.C. Circuit said Save Jobs USA has shown that its members already compete with H-1B visa holders, and that the regulation only increases that competition by providing an incentive for them to remain in the U.S.

The court rejected a point the government made during oral arguments in September—that the regulation doesn’t apply to the spouses of H-1B workers in general, but rather only to those seeking a green card.

The rule applies to H-1B visa holders with a pending labor certification application, who can continue to work while the Labor Department determines if there really aren’t Americans available for the job, the court said. Those workers, in certain circumstances, also can change jobs after the application is certified, it said.

The court allowed Immigration Voice, an organization representing the interests of mostly Indian immigrants who are seeking employment-based green cards, to remain as an intervenor in the case. The group’s attorney, Carl E. Goldfarb of Boies Schiller Flexner, didn’t immediately respond to a request for comment.

Judges David S. Tatel, Thomas B. Griffith, and Laurence Silberman issued the decision.

The Justice Department represented the DHS.

The case is Save Jobs USA v. Dep’t of Homeland Sec., D.C. Cir., No. 16-5287, 11/8/19.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com