Labor & Employment Law Daily Advocacy group Save Jobs USA has standing to challenge H-4 visa rule due to increased competition for jobs
Tuesday, November 12, 2019

Advocacy group Save Jobs USA has standing to challenge H-4 visa rule due to increased competition for jobs

By Wayne D. Garris Jr., J.D.

Save Jobs USA is an advocacy group made up of former IT workers for Southern California Edison who claim to have lost their jobs to H-1B employees.

Reversing a district court ruling, the D.C. Circuit ruled that an advocacy group created to “address the problems American workers face from foreign labor entering the United States job market through visa programs,” has standing to challenge a rule permitting H-4 visa holders (the spouses of H-1B visa holders) to obtain work authorization. The court found that the organization’s membership includes people who compete with H-1B visa holders in the labor market and that the rule will subject its members to an “actual or imminent” increase in competition. The case was remanded to the district court for further proceedings (Save Jobs USA v. United States Department of Homeland Security, November 8, 2019, Tatel, D.).

INA amendment. Congress amended the Immigration and Nationality Act to permit H-1B visa holders who have begun the employer-based immigration process to remain and work in the United States while awaiting decisions on their applications for lawful permanent residence. Under the amendments, H-1B nonimmigrants with approved Form I-140 petitions who are unable to adjust status because of per-country visa limits could extend their H-1B stay in three-year increments until their adjustment of status applications have been adjudicated.

H-4. After the amendment, the Department of Homeland Security issued a rule in 2015 permitting H-4 visa holders to obtain work authorization if their H-1B visa-holding spouses have been granted an extension of status under the INA or are the beneficiaries of approved Form I-140 petitions but could not adjust their status due to visa oversubscription. The Department issued the rule in order to “ameliorate certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking [lawful permanent resident] status, thereby minimizing disruptions to U.S. businesses employing such workers.”

Save Jobs USA. Save Jobs USA is an organization made up of former employees of Southern California Edison who claim that they lost their jobs to H-1B visa employees. The organization challenged the rule in the district court, arguing that it exceeded the Department’s statutory authority and that DHS acted arbitrarily and capriciously. The parties cross-moved for summary judgment on standing and the merits. The district court granted summary judgment to DHS finding that Save Jobs lacked Article III standing because the rule would not cause injury to members of Save Jobs.

Competitor standing. On appeal, Save Jobs had to prove that at least one of its members had standing to sue in his or her own right in order to prove that it had standing. Save Jobs argued, as it did in the district court, that the rule would harm its members by increasing competition for jobs between its members and H-1B visa holders. The court noted that the doctrine of competitor standing recognizes that “when regulations illegally structure a competitive environment—whether an agency proceeding, a market, or a reelection race—parties defending concrete interests in that environment suffer legal harm under Article III.”

Increased competition. The court agreed with Save Jobs that the rule will cause an “actual and imminent” increase in competition in the labor market. Prior to the rule, some H-1B visa holders awaiting permanent residence would leave the U.S., thereby exiting the labor pool, because their spouses were unable to work. As Save Jobs argued, authorizing H-4 visa holders to seek employment would encourage more H-1B visa holders to stay and compete with Save Jobs’ members than otherwise would have.

Stated purpose supports standing. Even DHS’ stated purpose for the rule supported the court’s findings. DHS stated that the rule would incentivize H-1B nonimmigrants to wait for an immigrant visa, and DHS expected the rule to “decrease the labor disruptions” that occur when H-1B nonimmigrants abandon the permanent resident process. In support of this position, the court cited over 60 commenters who wrote that they had planned to leave the country but will now stay and wait for permanent resident status as a result of the rule.

Competition with Saved Jobs members. Next, the court turned to the issue whether Save Jobs’ members compete with H-1B visa holders. In support of its position, Save Jobs submitted affidavits from two members who declared that they worked as IT specialists until they were replaced by H-1B visa holders. DHS asserted that any injury to Save Jobs is caused by the H-1B visa program itself, not by the rule, which only allows their spouse to work. The appeals court disagreed, concluding that Save Jobs had shown that the rule will cause more H-1B visa holders to remain in the U.S. than would have absent the rule.

Already employed vs. looking. Nor was the court persuaded by DHS’ argument that H-1B visa holders are already employed, so they aren’t competing with Save Jobs’ members who are looking for work. The court stated that “the supply side of a labor market is made up of those individuals who are employed and those actively looking for work.” Summary judgment for DHS was reversed and the case remanded to the district court for further proceedings.

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