In a previous article, we noted that a proposed rule by the U.S. Department of Homeland Security (DHS) to rescind employment authorization for spouses of H-1B workers remained under federal review at the Office of Management and Budget (OMB). This was in response to Save Jobs USA v DHS, a lawsuit that challenges the work authorization of H-4 spouses. In an update to this lawsuit, the U.S. Court of Appeals for the District of Columbia has determined that an advocacy group representing U.S. technology workers has standing to challenge DHS’s H-4 EAD program, thus overturning a lower court ruling. The U.S. Court of Appeals for the District of Columbia found that members of the advocacy group, Save Jobs, face actual or imminent labor market competition from foreign nationals because of the H-4 EAD program.

In light of this decision, the U.S. Court of Appeals for the District of Columbia has sent the case to the lower court, the U.S. District Court for the District of Columbia to determine whether DHS exceeded its authority when it first created the H-4 EAD program.

Because DHS already has a proposal under federal review to rescind the H-4 EAD program, it is likely that this update to the case will have any immediate impact on foreign nationals who currently hold or are applying for H-4 EADs. DHS has indicated that its rescission proposal will not be officially issued until after Spring 2020. Until then, the current rules allow eligible H-4 spouses of H-1B workers to continue to work or seek new employment under the H-4 EAD program.

We will continue to keep you updated regarding this matter. Please do not hesitate to contact our office with any further questions regarding this matter.